Ventra Investments Ltd v Bank Of Scotland Plc

Introduction

The trial of this action is currently listed to begin on 15 January 2020, with a time estimate of 20 days. The primary issue before the court on these applications is whether, in the interests of justice and in accordance with the overriding objective, I should vacate that listing to allow time for the Defendant to give the further disclosure which the Claimant asks me to order, and for the Claimant both to incorporate the results of that further disclosure into its statements of case and into its evidence, both factual and expert, and otherwise to amend its Particulars of Claim to expand the scope of its claims against the Defendant.

The Claimant’s case is that, for a variety of reasons, a fair trial in January 2020 is no longer possible. The Defendant resists the proposed adjournment of the trial, and argues that the impossibility of accommodating the amendments and further disclosure now sought by the Claimant in the six-month period between now and the trial date is a strong (though not the only) reason why I should refuse the Claimant’s applications.

Background

The Claimant (“VIL”) is a property development company, now in creditors’ voluntary liquidation. Its business model was to buy residential properties, to renovate them, and then to let them out. The Defendant (“BOS”) was VIL’s main banker. Over the period from 2004 to 2008, BOS made various loan facilities available to VIL. The terms of those facilities (on VIL’s case) required VIL to buy interest rate hedging products from BOS. In consequence, on 23 June 2005 VIL and

In the period between October 2008 and February 2009, VIL and BOS entered into a further 5 interest rate derivative contracts (“the Replacement Trades”), which restructured and replaced the Original Trades. Again, VIL was the fixed-rate payer and BOS the floating-rate payer. Both under the Original Trades and under the Replacement Trades, the floating rate payable by BOS was three-month GBP LIBOR.

BOS became part of the Lloyds banking group (“Lloyds”) in January 2009. In about May 2010, responsibility for VIL’s accounts was transferred within the group to Lloyds’ Business Support Unit (“BSU”). On 16 May 2011 BOS appointed Sarah

BOS had entered into an Umbrella Management Agreement (the “UMA”) with Grainger RAMP Ltd (“Grainger”) on about 3 May 2011. According to Mr Greaves (in his trial witness statement dated 3 May 2019 on behalf of BOS), the purpose of the UMA was:

Accordingly, on 20 May 2011, Grainger entered into a PMA with the Receivers, under which Grainger undertook (inter alia) to provide a variety of services, including letting and sales management, in relation to the portfolio of properties owned by VIL which was charged to BOS. I shall return to the topic of the UMA and the PMA, and to the detailed terms of those agreements, later in this judgment. Under Grainger’s management, the portfolio of approximately 89 properties owned by VIL was sold. This produced gross sale proceeds of just under £57m.

On 16 March 2015, VIL was placed into creditors’ voluntary liquidation. On 24 July 2015, the present action was begun by the joint liquidators of VIL.

The claims currently made by VIL in this action fall into three distinct parts: (1) claims which I shall refer to in this judgment as the “Misrepresentation Claims”; (2) claims which I shall call the “Breach of Duty Claims”; and (3) claims which I shall call the “Undervalue Claims”. In broad summary, these three sets of claims are as follows:

All of these claims are strenuously denied by BOS.

The Procedural History

By way of further background, I must set out a little of the procedural history of this action. As I have already mentioned, the Claim Form was issued on 24 July 2015. VIL suggests that the Receivers were contractually precluded and/or were deterred by the economic realities of their relationship with BOS from taking any steps to sue

On 7 October 2016, BOS served its Defence. At the same time, it also served an application by which it sought (a) summary judgment in relation to certain parts of

The first Case Management Conference took place before Ms Sonia Tolaney QC (sitting as a Deputy Judge of the High Court) on 24 January 2018. Ms Tolaney gave directions intended to lead to a trial starting on 24 June 2019. These included directions that BOS should give what was defined as “Stage I LIBOR Disclosure” by 29 March 2018, and that both parties should give standard disclosure (except, in the case of BOS, in relation to the “LIBOR Issues”) by 8 June 2018. VIL was also required further to amend its Particulars of Claim, after consideration of BOS’s LIBOR disclosure, by giving additional particulars of its allegations of fraud.

On 8 June 2018, the parties agreed to extend the date for standard disclosure to 27 July 2018, to permit a mediation to take place on 11 July 2018. On 16 July 2018, DLA Piper (UK) LLP (“DLA Piper”), the solicitors acting for BOS, confirmed to Hausfeld & Co LLP (“Hausfeld”), the solicitors acting for VIL, that BOS would be unable to give its non-LIBOR disclosure by 27 July 2018. The parties accordingly agreed that the proposed June/July 2019 trial date should be vacated: and Jacobs J made an order to that effect by consent on 31 July 2018. The parties thereafter agreed a revised timetable, intended to lead to a trial re-listed to begin on 15 January 2020. This revised timetable was embodied in an order made by consent by Phillips J on 4 September 2018. Standard disclosure was thereafter given by the parties on 12 October 2018.

On 3 May 2019, the parties exchanged their non-LIBOR factual witness evidence. The parties have not yet completed the ordered sequential exchange of expert evidence as to break costs and property and rental and income valuation. BOS has not yet served its factual evidence in relation to the LIBOR allegations. Nor have the parties completed the ordered sequential exchange of expert evidence as to forensic accountancy. The parties have, however, agreed a revised timetable under which these stages are all due to be completed prior to the PTR, which is presently listed for 10 December 2019.

The Applications now before the Court

There are two applications presently before the court: (1) the Disclosure and Amendment Application; and (2) the Adjournment Application. Each was issued on 29 March 2019.

These applications are supported by the third and fourth witness statements of Ms

BOS has consented to some of the re-amendments sought by VIL, and has provided some further disclosure. However, it disputes each aspect of these present applications. In particular, BOS strongly contends that the date currently fixed for trial should be maintained.

It was originally part of VIL’s case on both of these applications that it would in any event be necessary to adjourn the present trial date, as even the case as presently constituted could not be accommodated within the current 20-day time estimate. However, the Commercial Court Listing Office has recently confirmed that a trial of up to 44 Commercial Court sitting days (11 weeks) - which is VIL’s current estimate - could be accommodated in Hilary Term 2020, starting on the currently fixed date of 15 January 2020. That argument is therefore no longer pursued by VIL.

The hearing of these applications concluded late on Friday 12 July 2019. On 17 July 2019 Hausfeld delivered a letter enclosing a series of documents which it invited me to take into account in connection with certain of VIL’s applications for additional disclosure. On 18 July 2019, I received by email a letter from DLA Piper objecting to what they described as VIL’s “belated attempt to introduce new evidence”. I had by then already briefly read Hausfeld’s letter and its enclosures. I have, however, put the contents of Hausfeld’s letter and those new materials out of my mind, and have not taken them into account in reaching my decisions. In my judgment, it would be wrong of me to entertain this new material otherwise than by agreement. There was ample opportunity for VIL to put any material it wished before the court prior to the hearing. The late submission of these materials, after the conclusion of the hearing, has meant that there has been no adequate opportunity for BOS to deal with them.

The relevant legal principles

Certain principles are common to several of the parts of these applications. It may therefore be helpful for me first to set out some general principles of law relating to statements of case, to disclosure, and to “late” applications, before I turn to apply those principles to the detail of the applications now before me.

The function of statements of case is to define the issues which the court has to decide and to ensure that each party knows the case which it has to meet. As Dyson LJ noted in Al-Medenni v. Mars UK Limited [2005] EWCA Civ 1041 at [21]:

As the commentary at paragraph 16.0.1 of Civil Procedure notes, it does not follow that a court at trial will never entertain and decide an unpleaded issue. The true position was explained by Lord Phillips MR in Loveridge and Loveridge v Healey [2004] EWCA Civ 173 at [23]:

In order to assist in identifying the issues in the action, Particulars of Claim must include a concise statement of the facts on which the claimant relies: see CPR 16.4(1)(a). Subject to that overriding requirement, Particulars of Claim and other statements of case in the Commercial Court should be “as brief and concise as possible”. “Particular care should be taken to set out only those factual allegations which are necessary to enable the other party to know what case it has to meet.

Clarity is usually better served by brevity than prolixity. As Lord Woolf MR pointed out in McPhilemy v Times Newspapers Ltd and others [1999] 3 All ER 775 at 792-3:

The present action embodies three distinct claims, and is therefore perhaps of greater than average complexity. However, the statements of case already exceed to a significant degree the usual 25 page limit prescribed by paragraph C1.2 of the Commercial Court Guide. The APoC (including schedules) is approximately 60 pages long. The Amended Defence runs to some 50 pages.

With regard to applications to amend, amendments to statements of case that have been served require the permission of the court in the absence of agreement between all parties: see CPR 17.1. As the notes at paragraph 17.3.5 of Civil Procedure make clear, when considering whether to exercise its discretion to permit a party to amend a statement of case the court must have regard to all the matters mentioned in CPR 1.1(2), so as to deal with the case “justly and at proportionate cost” in accordance with the overriding objective. Such applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted. As Rix LJ stated in Savings & Investment Bank Ltd (in liquidation) v Fincken [2003] EWCA Civ 1630, [2004] 1 WLR 667 at [79]:

The timing of an application to amend may sometimes be determinative, particularly if the proposed amendment would result in the adjournment of a fixed date for trial. As Millett LJ observed in Gale v Superdrug Stores Plc [1996] 1 WLR 1089 at 1098:

Moreover, as the Court of Appeal noted (even prior to the coming into force of the CPR) in Worldwide Corpn Ltd v GPT Ltd [1998] CA Transcript No 1835:

I shall return to the principles specifically applicable to “late” applications below.

Although this action was begun in 2015, and an Order for disclosure was first made on 24 January 2018, it is common ground that the disclosure pilot scheme for the Business and Property Courts set out in Practice Direction 51U supplementing CPR Pt 51 (in force from 1 January 2019) now applies to it: see Sheffield United Ltd v UTB LLC [2019] EWHC 914 (Ch), [2019] Bus LR 1500.

PD51U refers to concepts such as “Extended Disclosure” and “Issues for Disclosure” which did not exist before 1 January 2019. However, as Sir Geoffrey Vos C explained in the Sheffield United case (at [24] and [75]):

As Sir Geoffrey Vos C further explained in the Sheffield United case (at [75], [76] and [78]):

It is that new approach which I must adopt in determining VIL’s present applications for disclosure. The parties have sensibly agreed that, for these purposes, I should treat the existing order for disclosure as if it were an order for Extended Disclosure under paragraph 6 of PD51U. However, they disagree about the appropriate analogy for VIL’s present applications. VIL submits that I should treat its applications as if they were applications for orders under paragraph 17.1 of PD51U consequent on BOS’s failure adequately to comply with the existing order for disclosure (Footnote: ²). BOS submitted that I should treat VIL’s present applications as if they were applications for additional disclosure of specific documents or classes of documents under paragraph 18.1 of PD51U (Footnote: ³).

In my judgment, if there is any difference between the approaches required under these two provisions, it is at most a difference in emphasis which can have no practical effect in the particular circumstances of this case. An applicant under paragraph 17.1 of PD51U must “satisfy the court that making an order is reasonable

In applying the principles required by PD51U I must also be on my guard to ensure that this new approach does not “create a framework for injustice” (to adapt the warning about an earlier rule change intended to limit the scope of disclosure given by Maurice Kay LJ in Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328, [2013] 1 CLC 596 at [183]). In deciding under paragraph 18.2 of PD51U what “is necessary for the just disposal of the proceedings and is reasonable and proportionate”, I must bear in mind the fact that, in cases such as this, there is inevitably a very significant asymmetry of information between the claimant and the defendant.

The process of disclosure is one of the most powerful tools available for achieving justice. That is particularly so in cases such as the present, where allegations of fraud and misconduct within the defendant organisation are in issue. It is wrong in principle to plead matters which do not support or relate to any of the remedies sought or to plead immaterial matters with a view to obtaining more extensive disclosure than might otherwise be ordered: see Charter UK Ltd v Nationwide Building Society [2009] EWHC 1002 (TCC) at [16], per Akenhead J; and Grove Park (supra) at [24]. However, the law rightly requires a claimant alleging fraud to plead its case with great particularity and precision, and not to make allegations which are not supported by credible evidence: see eg Three Rivers District Council v Bank of England [2001] UKHL 16, [2003] 2 AC 1 at [184]-[186] per Lord Millett.

In cases such as the present one, the interplay between those two principles can often create a “chicken and egg” dilemma for a claimant. It is inherent in cases such as this that it is likely to be difficult for a claimant to discover the facts and to obtain the necessary evidence, since much of the relevant material will be exclusively within the control of the defendant. Yet, if the scope of disclosure is too tightly confined by the specific facts that the claimant has already been able to plead, the claimant may simply be unable to obtain the material that it needs to plead and to make out its case.

PD51U is intended to serve the overriding objective of dealing with cases justly and at proportionate cost, by limiting disclosure to that which in the particular case in question is necessary for the just disposal of the proceedings and which is reasonable and proportionate. It is not intended to hinder the just resolution of substantial cases such as this by making it more difficult for claimants to get at the central documentary evidence that they need.

It seems to me that, in such circumstances, what is required from the parties and the Court is a pragmatic, flexible approach to the scope of disclosure, taking into account

The obligation which a reasonable and proportionate order for Extended Disclosure can impose on a defendant, not merely (under Models A or B) to disclose its already “Known Adverse Documents”, but also (under Models C, D or E) actively to search for documents adverse to that defendant’s case or which might assist the case of the claimant can often be the only (or only realistic and/or proportionate) means that a claimant may have of obtaining the information and the evidence that it needs to plead and to make out its case. Such an order (for extended or additional disclosure) may therefore be the most practical way of dealing with the case justly.

It is common ground that, to the extent that any order that I might make giving permission to amend or requiring additional disclosure might have the effect of jeopardising the present trial date, I must take that factor into account.

As Chadwick LJ stated in Boyd & Hutchinson v Foenander [2003] EWCA Civ 1516, [2004] BPIR 20 at [9]:

The principles relevant to “late” applications to amend were recently summarised by Sir Geoffrey Vos C in Nesbit Law Group LLP v Acasta European Insurance Company Limited [2018] EWCA Civ 268 at [41]:

I put the word “late” in quotation marks because, as Carr J also noted:

There is one matter that is specific to “late” applications to amend a statement of case. It is, as Lloyd LJ noted in Swain-Mason v Mills Reeve LLP [2011] EWCA Civ 14, [2011] 1 WLR 2735 at [73], that:

Disclosure in relation to the Undervalue Claims

Against that background, and applying those principles, I now turn to the first part of the Disclosure and Amendment Application, VIL’s application for additional disclosure in relation to the files of Grainger and Dickinson Dees. Paragraph 5(v) of the draft Order attached to the Disclosure and Amendment Application (set out in paragraph 16.1.1 above) formally seeks an order in very wide terms. However, it is clear from the arguments presented on VIL’s behalf by Mr Stephen Davies QC (who has appeared for VIL with Ms Anna Lintner and Mr Michael d’Arcy) that all that VIL is really seeking under this part of its application is an order that BOS should disclose or procure the disclosure of the files of documents relating to VIL and/or VIL’s property portfolio that were maintained by Grainger and by Dickinson Dees.

In Mr Davies’ submission, it is not possible to have a fair trial of the Undervalue Claims without disclosure of the files of Grainger and Dickinson Dees. That, in Mr Davies’ submission, is for two reasons:

Mr Davies submits that these issues are both central to the case and that these documents are therefore likely to be of crucial importance to VIL in making out its case in relation to the Undervalue Claims. In Mr Davies’ submission, the core contemporaneous documentary base recording the dealings with VIL’s portfolio is held not in the files of the Receivers but in the files of Grainger and Dickinson Dees.

In particular, in relation to the second reason mentioned in paragraph 48 above, Mr Davies submits that it is only on the receipt of these files that VIL will be able properly to instruct its expert to state a view on the issue of undervalue, since unless VIL can show that (in any particular case) the property concerned was in fact not properly marketed and/or was not sold under an arm’s length transaction, the price actually obtained will be treated as prima facie evidence of the true market value: see Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1995] 2 All ER 769 at 789d-g, per Phillips J; Michael v Miller [2004] EWCA Civ 282 at [141], per Parker LJ; and Bishop v Blake [2006] EWHC 831 (Ch) at [105]-[106], per Sir Francis Ferris.

VIL’s case is that the arrangements between BOS and Grainger, embodied in the UMA, mean that these files of documents are in BOS’s “control” within the meaning of CPR 31.8. In that connection, Mr Davies has drawn my attention to the observations of Toulson LJ in North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 at [40] that “the court must have regard to the true nature of the relationship between the third party in the litigant .. even if there [is] on a strict legal view no ‘right to possession’”.

Mr Davies puts VIL’s case in relation to BOS’s control of these documents both on a wider and a narrower basis.

With regard to the alleged lateness of this application, Mr Davies makes four submissions.

Statement of Insolvency Practice 17, and to the fact that

“not all of the administrative receiver’s papers belong to the company. Some papers belong to the administrative receiver personally and some belong to the charge holder”. WBD offered to provide copies of those documents which belonged to VIL, provided that VIL first undertook to meet

WBD’s reasonable costs of separating the documents belonging to VIL from those belonging to the Receivers personally or to BOS.

Almost all of these submissions were hotly contested by Ms Rosalind Phelps QC, who appeared (with Mr Rupert Allen and Mr Max Kasriel) for BOS. In Ms Phelps’ submission:

Ms Phelps’ first argument (in summary) is that additional disclosure should not be ordered unless it is directed to a pleaded issue which is also one of the key issues in dispute, and that the bulk of the allegations set out in Hausfeld’s correspondence and in the evidence served on behalf of VIL for this application do not form part of VIL’s presently pleaded case. It is therefore necessary for me to consider the relevant parts of the current statements of case in some detail.

The Undervalue Claims are pleaded in section M “Appointment of the Insolvency Professionals” of the APoC. Paragraph 70 pleads the appointment of the Receivers:

Paragraphs 71 to 73 of the APoC then continue as follows:

The draft Re-Amended Particulars of Claim for which VIL now seeks permission propose minor amendments to the figures in paragraphs 72 and 73 of the APoC, but would otherwise leave these paragraphs unaltered.

Paragraph 91 of the Amended Defence admits the appointment of the Receivers and avers the existence of the PMA between the Receivers and Grainger, but otherwise does not admit paragraph 70 of the APoC. Paragraph 92 of the Amended Defence says that the allegations in paragraph 71 of the APoC are inadequately particularised, and otherwise denies them. In paragraph 93 of the Amended Defence, the amount realised from sale of VIL’s portfolio is admitted. Paragraph 94 of the Amended Defence avers that, after the appointment of the Receivers “a number of discoveries were made, including that some of the properties had been poorly maintained or refurbished, many had problems with planning consents and there were other serious

VIL responds to paragraphs 91 to 94 of the Amended Defence in paragraphs 81 to 84 of its Reply. For present purposes, it is only necessary to refer in detail to paragraphs 82 and 84. Paragraph 82 of the Reply disputes the suggestion that VIL has failed to provide proper particulars, and pleads the following further facts and/or arguments:

Paragraph 84 of the Reply responds to paragraph 94 of the Amended Defence. It denies the accuracy of the King Sturge valuation for a number of reasons, including:

In my judgment, these sections of the APoC and the Reply do not adequately plead the Undervalue Claims case articulated in Hausfeld’s correspondence and in the evidence relied upon by VIL in support of the applications now before the Court. Not only do they not include a concise statement of many of the specific facts now relied on by VIL, but they do not even make clear the general nature of the case which VIL now seeks to advance.

There are two aspects to the Undervalue Claims: (1) the allegedly wrongful

In relation to the latter, VIL’s argument on these applications has relied heavily on the terms of the UMA: but the UMA is not specifically mentioned, either in the APoC or in the proposed Re-Amended Particulars of Claim. Moreover, the use of the word “thereafter” in paragraph 71 of the APoC suggests that the “intermeddling” by BOS of which VIL makes complaint occurred only after BOS had appointed

As for the allegedly wrongful characteristics of the sales themselves, paragraph 84 of the Reply lists four examples of rapid on-sales at an increased price. However, these examples are given as indications of the true value of the properties, rather than as particulars of deliberate misconduct by Grainger or WPS. In my judgment, there is force in Ms Phelps’ submission that the substantive allegations now made by VIL of improper (as opposed to inadequate) conduct by Grainger and/or WPS are simply not mentioned anywhere in VIL’s present statement of case.

VIL makes three different types of claim against BOS, one of which has itself three separate aspects. A case of this complexity demands especial clarity in the pleading of statements of case, not merely for the sake of the other side but also for the sake of

It follows that, in my judgment, much of the material now relied on by VIL in its evidence and arguments is, on a strict application of the rules, not capable of supporting an application for additional disclosure under paragraph 18.1 of PD51U, since it is directed to matters which are not currently among the “key issues in dispute” identified in the existing statements of case.

However, that is not of itself wholly fatal to this aspect of VIL’s present application for additional disclosure. As Ms Phelps has accepted, VIL’s statements of case do presently contain express averments that VIL’s portfolio of properties was sold at an undervalue after “inadequate marketing by inappropriate agents”, and that BOS has by its conduct (including the “imposition” of Grainger on the Receivers and the fact that the disposal of the properties was dictated by the “joint venture” between BOS and Grainger, rather than by the Receivers themselves) made itself responsible in equity for the loss caused by those sales.

In that connection, the practical issue discussed in paragraphs 34 to 41 above is of particular relevance. The Court must take care to ensure that an overly-strict limitation of the scope of disclosure by reference to the presently pleaded details, rather than to the nature of the case set out in the statements of case, does not result in VIL being kept in ignorance of important material.

In my judgment, the issues raised by those presently pleaded averments are plainly among the “key issues in dispute” in this action for the purposes of PD51U, even though the details of the additional matters now relied upon by VIL may not be: and it must be inherently probable that the files of Grainger and/or WPS will contain documents that are directly relevant to those presently pleaded issues. If, as VIL now submits, those files are or were within the “control” of BOS, those relevant documents ought therefore to have been disclosed by BOS under the existing order for standard disclosure.

It follows that I would not, on this ground alone, have refused to order BOS to search for and disclose relevant documents from the files of Grainger and/or WPS had I concluded that those files were in the “control” of BOS and that it was necessary for the just disposal of these proceedings and reasonable and proportionate to do so.

However, Ms Phelps’ second argument (in summary) is that the files of Grainger and/or Dickinson Dees are not in the “control” of BOS, because Grainger was (contrary to VIL’s submissions) not BOS’s agent under the UMA and has no continuing contractual right under the UMA to production of the files either of Grainger or of Dickinson Dees.

The security held by BOS over the property portfolio of VIL, which entitled BOS to appoint the Receivers, was not in evidence. It was nevertheless common ground that the terms of that security provided that the Receivers should be agents for VIL. It was also common ground that, as stated by Rigby LJ in Gaskell v Gosling [1896] 1 QB 669 at 697:

As explained in Gaskell, this agency is a convenient legal device, designed to protect mortgagees from the “almost penal liabilities imposed on a mortgagee in possession”. It is, as noted by Hildyard J in Edenwest v CMS CameronMcKenna [2012] EWHC 1258 (Ch), [2013] 1 BCLC 525 at [62]-[65]:

These rules of law, which have the effect of protecting the mortgagee, are well established. Nevertheless, in appropriate cases, the courts are willing to look beyond the contractual provisions to the reality of the situation. As stated by Snowden J in Davey v Money [2018] EWHC 766 (Ch), [2018] Bus LR 1903 at [699]:

In particular, “if a bank mortgagee, after appointing a receiver in exercise of its mortgagee powers, interferes in the receiver’s conduct of the sale of the mortgaged property by insisting against the receiver’s expressed wish on the employment of an inadequately experienced agent who thereafter conducts the sale negligently so that a sum below the open market is obtained, the bank would be liable to the mortgagor in respect of that loss”: Morgan v Lloyds Bank Plc [1998] Lloyd’s Rep Bank 73 at 82, per Sir John Knox (quoted in American Express International Banking Corporation v Hurley [1985] 3 ALL ER 564 at 571, per Mann J).

In Davey v Money (supra at [707]-[708]), Snowden J had to consider how to apply these rules by analogy to the situation where the holder of a qualifying floating charge had appointed administrators (under the Insolvency Act 1986 Schedule B1) rather than receivers:

The issue of whether BOS did in fact cross the line so as to make itself liable for the actions of the Receivers and their agents (including Grainger and/or WPS) is one of the central issues for trial. It is also one which is acutely fact sensitive: and Mr Davies accepts that, since I cannot try the facts simply on the basis of the witness statements served in support of these interim applications, it is not an issue that I can or should attempt to resolve.

Mr Davies, however, submits that the only relevant issue that I have to decide for the purposes of this application for additional disclosure is that of “control”: and that, for that purpose, I need only consider the express provisions of the UMA. Those provisions, in his submission, plainly constitute Grainger as the agent of BOS and so put the files of Grainger and/or Dickinson Dees within the control of BOS for the purposes of CPR 38.1. In Mr Davies’ submission, the relationship created by the UMA has all the hallmarks of agency discussed in paragraphs 1-001 and 1-020 of Bowstead & Reynolds on Agency (21^st ed) and by the Court of Appeal in UBS AG (London Branch) v Kommunale Wasserwerke Leipzig GmbH [2017] EWCA Civ

In order to consider that submission, it is necessary for me to analyse the structure and terms of the UMA. The UMA is a detailed agreement, whose provisions are set out over 62 pages. Its purpose is explained in its Recitals as follows:

The scheme of the UMA revolves around the concept of the “UMA Services” which Grainger is, by clause 2, appointed to provide.

Clause 6 and Schedule 1 Part 3 provide for the “UMA Fees” of either £150 “for each Target Property in respect of which an Initial Assessment has been provided in the

Clause 3.2 expressly limits the authority of Grainger “to the provision of the UMA Services and all matters incidental to their provision”: and clause 23 provides that the UMA “does not constitute a partnership or joint venture between the parties”.

In relation to the UMA Services, clause 3 expressly imposes a duty of care on Grainger and requires Grainger to use the level of skill of a “Manager who is qualified and experienced in carrying out residential Property Management services on a large scale, scope and complexity”. It also requires Grainger “at all times [to] endeavour to act in what is reasonably considered to be the best interests of the lender” and “in good faith”. Clause 3 also requires Grainger to comply with BOS’s reasonable requirements, and not to make any profit or commission out of the UMA Services (other than the UMA Service Fees and the PMA Service Fees) without

Clause 7 and Schedule 2 together require Grainger to “use all reasonable endeavours

Since I have no evidence as to the commercial context of the UMA except that which is obvious from its express provisions, and since its true interpretation and effect are likely to be material issues at trial, I am reluctant to express any concluded view on those matters and I do not do so. I also express no view on the effect of any other communications between BOS and Grainger or of any actions that either of them may in fact have carried out in the context of the UMA.

For present purposes, it is sufficient for me to say that I am not presently persuaded by Mr Davies’ argument that the UMA in and of itself constitutes Grainger as BOS’s agent, so as to put Grainger’s files in law under the “control” of BOS.

First of all, I am not persuaded that the UMA in and of itself confers on Grainger any sufficient right to act on BOS’s behalf so as to affect its relevant relations with third parties. Mr Davies’ submissions seemed to me, at times, to treat the employment of a contractor to carry out a task as necessarily involving the creation of an agency relationship in relation to that task between the employer and the contractor. In my judgment, that approach confuses two different (though sometimes overlapping) functions and concepts.

The terms of clause 3.2, with its express negation of Grainger’s right to affect BOS’s relations with third parties, seem to me to be important pointers against the idea that the relationship created by the UMA was intended to be one of agency. The overall structure and terms of the UMA also seem to me to point against agency. The terms of the UMA seem to me to have been carefully drawn with the intention of ensuring that BOS stays within the “artificial or contrived” arrangement described in paragraphs 73 to 77 above, under which the Receivers act as agents for the mortgagor rather than for BOS as mortgagee, and Grainger acts for the Receivers. The intention of the structure, in essence, is that Grainger should be appointed by BOS under the UMA to provide what are essentially advisory services, and should thereafter be appointed by the Receivers under a PMA to assist the Receivers in performing the Receivers’ “duty .. to realise the assets in the interests of the mortgagee and to try and ensure repayment of the secured debt .. and to [manage] the security, the property of the mortgagee, for the benefit of the mortgagee” (see paragraph 74 above).

Secondly, I am not persuaded by Mr Davies’ argument that the UMA in and of itself creates a fiduciary relationship between BOS and Grainger. Fiduciary duties do not commonly arise in commercial settings such as this (outside the settled categories of fiduciary relationships) because it is normally inappropriate to expect a commercial party to subordinate its own interests to those of another commercial party, which is the hallmark of such a relationship: see Snell’s Equity (33^rd edition) at 7-005. It presently seems to me that neither the express obligation of good faith, nor the obligation to act in the best interests of BOS are - whether considered individually or collectively - sufficient in the context of the UMA as a whole to make the relationship between BOS and Grainger created by the UMA a fiduciary one. On the contrary the fact that clause 3.6 of the UMA implicitly permits Grainger to have a conflict between its interests and those of BOS, subject only to a requirement to notify BOS of that conflict, strongly suggests the contrary.

The relationship created by the UMA therefore seems to me to lack two of the main characteristics of agency: and, as the Court of Appeal held in paragraph [91] of UBS, the absence of any one of those main characteristics must be a significant pointer away from the characterisation of the relationship as one of agency. For all these reasons, I am therefore not persuaded that the relationship created by the UMA is one of agency, so as to put Grainger’s documents into BOS’s control as a legal incident of that relationship under the principles set out in paragraph 52.1.1 above.

Mr Davies, however, has two other limbs to his argument. The first is that certain specific provisions of the UMA put Grainger’s documents within BOS’s control. The second is that, as a matter of fact (in Mr Davies’ submission) it is clear from the way in which the relationship between BOS and Grainger played out in practical terms that BOS was well positioned to request documents relating to the marketing and sale of VIL’s properties by agents appointed by Grainger.

The specific provisions of the UMA relied on by Mr Davies are these:

Clause 12.5.1 expressly states that the obligations contained therein were to continue “for such period as is reasonably appropriate notwithstanding the termination or expiry of” the UMA. Clause 12.4 states that (inter alia) clauses 9 and 11 are to continue in full force and effect notwithstanding the termination of the UMA.

In my judgment clauses 3.1.9, 3.4, 5.1 and 11.5 cannot assist VIL. They did not, by their terms, give BOS “control” of Grainger’s documents. Clause 3.1.9 is simply a notification requirement. The power conferred by clause 3.4 would probably not encompass an instruction to hand over Grainger’s files, as that is not the purpose for which it was conferred. It is in any event limited to the provision of the UMA Services (rather than anything done under the PMA), and probably does not survive termination. Clause 5.1 can have no application, because it applies only where BOS appoints a Monitor, and BOS has not done so. The power conferred by that clause also probably does not survive termination. As for the examination requirement under clause 11.5, the wording of the clause makes clear that the power given to BOS by that clause to examine Grainger’s documents is given for limited and specific purposes which do not include giving disclosure in litigation against third parties.

The rights conferred by clause 12.5.1 may well have been wide enough to empower BOS to require Grainger to hand over its relevant files on termination of the UMA. However, they were again conferred for a specific purpose - in this case, to effect a handover - and were expressly stated to cease once a reasonable period had elapsed. Given that the arrangements between BOS and Grainger (as Mr Davies put it) “came to an abrupt end in 2014 in respect of all jobs” (Footnote: ⁴), such a period would in my judgment inevitably have expired some time ago. Clause 12.5.1 can therefore give BOS no present right to Grainger’s files.

That leaves only clause 9.4. It seems likely that Grainger’s files would have included many documents containing “Confidential Information” within the wide definition given to that expression in the UMA: and the obligations created by clause 9 are expressly stated to continue despite the termination of the UMA. However, in my judgment, clause 9.4 does not on its true interpretation give BOS any present right to Grainger’s files. Clause 9.4 has to be interpreted in the context of the UMA as a whole. That context includes clause 12.5.1, providing for handover following termination and seems to me to indicate clause 9.4 is concerned with the narrower purpose of preserving confidentiality following termination. In that context, it seems to me that the natural meaning of the words “return or destroy upon written demand” gives the party receiving the written demand (rather than the party giving it) the choice whether to return or destroy. Nothing more is require in order to ensure the preservation of confidentiality. Clause 9.4 therefore cannot be pressed into service to confer on BOS a blanket right to demand Grainger’s files for the purposes of disclosure.

It follows, in my judgment, that BOS has no presently enforceable right to compel Grainger to hand over its files in order that BOS may disclose the documents in those files to VIL. BOS may well have had such a right during the currency of the UMA: and, on that basis, probably ought to have disclosed Grainger’s documents, in the sense that it should have listed them, at least generically. But, absent present possession or a present right to possession, BOS could not have given inspection of those documents. It would not be sensible or proportionate for me to require BOS simply to list them at this stage in the proceedings.

Mr Davies’ final argument is that it is sufficient that Grainger would in fact, if asked by BOS, provide its files to BOS. Mr Davies relies upon the cooperative relationship between Grainger and BOS created by the UMA, and upon cases such as North Shore Ventures Ltd (referred to in paragraph 51 above) and Schlumberger Holdings Limited v Electromagnetic Geoservices AS [2008] EWHC 56 (Pat) at [16] to [21], where Floyd J said:

In my judgment the answer to that submission, as Ms Phelps pointed out, is that there is no evidence of the kind considered by Floyd J before the court in the present case. On the contrary, the fact that the relationship between Grainger and BOS terminated (as is common ground) “abruptly” rather suggests the contrary. At all events, the absence of any such positive evidence brings the present case squarely within the situation described in the first sentence that I have just quoted from Floyd J’s judgment. The fact that BOS might be able to obtain Grainger’s documents is not, on its own, sufficient to make those documents ones that are within the control of BOS for the purposes of CPR 38.1.

It follows that I cannot properly make an order against BOS for disclosure of documents currently in the possession of Grainger, because those documents are not within the control of BOS.

The position in relation to the documents of Dickinson Dees is similar. Mr Davies has not argued that BOS has any direct right to those documents, but only an indirect right through Grainger or the Receivers. On the evidence presently before the Court, Mr Davies was in my judgment correct to accept that BOS has no direct right to the documents of Dickinson Dees (except, perhaps, to the limited extent (if any) that Dickinson Dees acted as BOS’s solicitors for the purposes of releasing BOS’s security on the sales). My conclusions in relation to the nature of the relationship between Grainger and BOS created by the express terms of the UMA preclude the existence of any indirect right through Grainger or the Receivers.

Those conclusions make it unnecessary for me to consider Mr Davies’ further submissions on the issues of discretion and delay. However, in case this matter should go further, I will briefly indicate my views.

In relation to the documents of Grainger, Ms Phelps made a powerful point in drawing attention to the Reporting Requirements in Schedule 6 of the PMA, which conferred upon VIL a direct right against Grainger. Paragraph 1(b)(ii) of Schedule 6 to the PMA provides that Grainger shall:

It is also clear from the correspondence set out in paragraph 53.3 above that VIL could have taken steps of the kind described in paragraph 54.3.1 above to obtain the documents of Grainger and/or Dickinson Dees, but has taken a conscious decision not to do so but instead to pursue the present application against BOS. That is so even though VIL has known since August 2018 that such an application would be firmly resisted.

On the other hand, it seems to me that there is force in Mr Davies’ submission (see paragraph 49 above) that the core contemporaneous documentary base recording the dealings with VIL’s portfolio is held not in the files of the Receivers but in the files of Grainger and of Dickinson Dees. The examples of sales apparently to connected parties and of rapid on-sales at significantly higher prices which are set out in

There is also force in Mr Davies’ submission that the arrangements between Grainger and BOS recorded in the UMA are unusual: and I am left with a lingering doubt that either VIL or the Court presently has the full picture available to it of how that relationship actually operated in practice. Again, the most complete documentary record is likely to be that in the files of Grainger and Dickinson Dees.

It was common ground that, were I to have ordered BOS to disclose the documents in the files of Grainger and Dickinson Dees, there would have been insufficient time between now and January 2020 for that process to be completed and for the parties thereafter to complete their preparations for trial in good order. It would therefore inevitably have been a consequence of such an order that I would have had to adjourn the date presently fixed for trial.

I therefore invited the parties to consider whether I might split the trial in some way, so as to keep the present date, but to put off to a later date those issues which could

In the circumstances, I must therefore refuse this part of the Disclosure and Amendment Application.

The Original Trades Amendments

In the second part of the Disclosure and Amendment Application, VIL seeks permission to amend the APoC so as to extend its LIBOR Representation claims to the Original Trades. Its proposed amendments (“the Original Trades Amendments”) plead:

Additional particulars of the making of these alleged representations are given in the first 33 entries in Schedule 4 of VIL’s proposed re-amended pleading. Additional particulars of BOS’s alleged involvement in LIBOR-related misconduct prior to 2006 are given in Schedule 5 Part A. VIL does not seek permission to make these additions to Schedules 4 and 5 separately from its proposed amendments to the main body of the APoC.

The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 paras 33-37, Harvey 1 paras 188-219 and Craig 4 paras 194-202.

In Mr Davies’ submission, these proposed further amendments are entirely consistent with the case already put forward by VIL in relation to the Replacement Trades, have a real prospect of success, and ought in justice to be permitted so that VIL’s full case, consistent across all the Swaps which it says it was fraudulently induced to enter into, can be heard and determined. According to Mr Davies, where (as here) the allegations against BOS relate to serious LIBOR misconduct and fraudulent misrepresentations .. there should be overwhelming reasons (which are not present in this case) to shut out those allegations and prevent them from being investigated properly.

BOS objects to these proposed amendments. In Ms Phelps’ submission, these are entirely new allegations, which could and should have been put forward at the outset, since they do not rely upon any recently discovered material. These proposed amendments would require significant further disclosure, and additional factual and expert evidence. As VIL accepts, these amendments, if permitted, would therefore inevitably require the date presently fixed for trial to be adjourned. The injustice to BOS and other litigants far outweighs the injustice to VIL in refusing its application.

Looking at the matter in the round, it seems to me that the factors mentioned in CPR

On the other hand, VIL’s reasons for its delay in putting forward these further allegations are unconvincing. Mr Bishop’s evidence (Bishop 7 para 40) is that:

Furthermore, BOS’s LIBOR disclosure has so far been based upon the investigations which it carried out for the purposes of the various regulatory enquiries. This took as a starting date 1 January 2006. The first of the Original Trades dates from June 2005. In order to give disclosure in relation to that first Original Trade, it would therefore be necessary for BOS to conduct a new investigation covering the year 2005. I accept Mr Harvey’s evidence (Harvey 1 paragraphs 217 to 2018) that:

That enquiry would, of course, be directed primarily to the question of whether the alleged representations (if proved to have been made and relied on) were false and fraudulent. With regard to the making of the alleged representations and reliance there would, in my judgment, be a considerable overlap between the existing evidence in relation to the Replacement Trades and that required in relation to the Original Trades. However, at least some new evidence would be required even in relation to that aspect of the new case that VIL now seeks to put forward. It also seems to me that considerably more new evidence would be required to deal with the new causation case and other aspects of the claims for damages resulting from the Original Trades Amendments.

Although there may perhaps be some element of exaggeration in this part of Mr Harvey’s evidence (Harvey 1 paras 200-204), I accept the general thrust of what he says, which is that the Original Trades Amendments would require BOS to undertake a further significant exercise in relation to its factual and expert evidence, and that that exercise has been made more difficult and more expensive by the fact that these allegations were not put forward at the start of the case.

In accordance with the principles discussed in paragraphs 43 to 45 above, I have to balance the need for finality in litigation and the injustice to BOS and other litigants in adjourning the date presently fixed for trial in order to require BOS to deal with these new allegations against the injustice to VIL of refusing its application to make these amendments. Given the likely effect of the proposed amendments on the trial date, there is inevitably a heavy burden on VIL to justify the lateness of the application and to show why justice requires that it should be allowed to pursue it. In my judgment, VIL has not discharged that burden, and the balance of fairness and

In the event that I were to regard the matters discussed in paragraph 118 above in relation to the June 2005 Original Trade as counting strongly in the balance against VIL, Mr Davies invited me as an alternative to consider giving permission to make the Original Trades Amendments solely in relation to the second and third of the Original Trades, which date from February 2007 and February 2008. In my judgment, the balance of fairness and justice comes down in favour of refusing even those more limited aspects of the Original Trades Amendments. Even these more limited amendments would still jeopardise the present date for trial, having regard to the need for additional factual and expert evidence referred to in paragraph 119 above: and VIL’s reasons for the lateness of the application to amend remain unconvincing.

The Rescission Amendments

VIL also seeks to add a new paragraph 73A and new paragraphs (1) and (2) to the prayer to the APoC (“the Rescission Amendments”), in order to claim the remedy of rescission. Having regard to my decision in relation to the Original Trades Amendments, VIL seeks to make this amendment only in relation to the Replacement Trades.

The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 paras 47-51, Harvey 1 paras 228-231 and Craig 4 paras 205-206.

On behalf of VIL, Mr Davies submits that rescission is the usual remedy for misrepresentation, and that VIL’s claim for that remedy will not necessitate new areas of factual or expert enquiry beyond those required for VIL’s damages claims.

BOS objects to the Rescission Amendments, primarily on the ground that they would require significant further factual and/or expert evidence. In particular, BOS says that it would wish to tender expert evidence as to what BOS says is the very limited financial impact on VIL’s swaps of the alleged LIBOR misconduct, in order to show that to grant the remedy of rescission would be a disproportionate exercise of the discretion conferred by the Misrepresentation Act 1967 s 2(2): see eg William Sindall Plc v Cambridgeshire County Council [1994] 1 WLR 1016. Although Mr Harvey’s evidence also objects to the Rescission Amendments on the grounds that “they stand no real prospect of success”, Ms Phelps has made clear that BOS no longer relies on

Mr Harvey does not say in his evidence that it would be impossible for BOS to get this further evidence (which in any event seems to me to be largely to be a matter of obvious calculation) in time to maintain the existing trial date. Given the resources available to BOS, it does not seem to me to be unreasonable to require them to produce any such evidence in fairly short order, so that it can be available for the existing trial date: and I am unpersuaded that it would be difficult for BOS to put together any further factual evidence necessitated by the Rescission Amendments, limited to the Replacement Trades. The prejudice to BOS from allowing the Rescission Amendments therefore seems to me to be small and of a kind which ought to be readily manageable in important commercial litigation of this kind.

Applying the principles discussed in paragraphs 27 to 29 and 43 to 45 above, the balance between injustice to VIL if the amendment is refused, and injustice to BOS and other litigants in general if the amendment is permitted therefore seems to me, in the case of the Rescission Amendments (limited to the Replacement Trades), to come down in favour of permitting the amendments, and giving consequential directions to ensure that any necessary factual and/or expert evidence is served in sufficient time for the present trial date. To that extent, therefore, that part of the Disclosure and Amendment Application succeeds.

Additional disclosure in relation to the Undervalue Claims

In the third part of the Disclosure and Amendment Application, VIL seeks a nuber of specific categories of additional disclosure. First, VIL seeks 7 categories of additional disclosure in relation to the Undervalue Claims.

VIL seeks an order that BOS should search for and disclose “Documents in the repositories of Richard Dakin and Andrew Wilson between 31 May 2011 and 30 September 2014 using the agreed keywords set out in the [BOS’s Disclosure] Statement” (“the Statement”). The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 paras 108-136, Harvey 1 paras 84-134 and Craig 4 paras 150-159.

On behalf of VIL, Mr Davies submits that Mr Dakin and Mr Wilson were the two most important decision-makers within BOS whose function it was to address at a high level the difficulties experienced by BOS with Grainger. In Mr Davies’ submission, had VIL known of the UMA and of the responsibility of these two individuals for addressing the difficulties experienced with Grainger, these search terms would have been requested from the outset and there could not have been a reasonable objection. The decision not to search these custodians’ documents for the whole of the period of the operation of the UMA is indefensible.

BOS, by contrast, says that it has already searched its document repositories for Mr

Applying the principles set out in paragraphs 31 to 41 above, it seems to me that these documents are likely to be relevant to Issue 19 in the List of Common Ground and Issues, and that that issue is one of the key issues in dispute. It seems to me that Mr Davies makes a good point when he says that he should be entitled to see the documents of the managers for the whole of the relevant period, and not just to see their thoughts and actions reflected in the documents of what he described as “the foot soldiers” of BOS. In the circumstances, and taking into account the entirety of the evidence to which I have referred in paragraph 130 above, I am persuaded that it is appropriate to make the order sought by VIL under this head in order fairly to resolve that issue.

VIL seeks an order (as amended by Mr Davies in oral argument) that BOS should search for and disclose “All documents, including any side letter, containing the terms upon which [BDO] was appointed to the relevant panel by BOS and/or [Lloyds]”. The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 paras 108-136, Harvey 1 paras 102-108 and Craig 4 paras 139-144.

On behalf of VIL, Mr Davies submits that the relevance of the panel relationship of the Receivers’ firm, BDO, has been pleaded in paragraph 71.4 of the APoC since July 2016, but is responded to in paragraph 92 of the Amended Defence by a bare denial. In Mr Davies’ submission, the terms of panel membership are also relevant

BOS resists this category. Ms Phelps submits that the request is simply fishing, is hopelessly wide and unfocused, and seeks documents which have nothing to do with VIL.

I disagree. In my judgment, these documents are likely to be relevant to Issue 19, and are potentially of importance to VIL’s case as presently pleaded. It should not be difficult or onerous for BOS to disclose these documents. In the circumstances, and taking into account the entirety of the evidence to which I have referred in paragraph 134 above, I am persuaded that it is appropriate to make the order sought by VIL under this head in order fairly to resolve that issue.

VIL seeks an order that BOS should search for and disclose:

On behalf of VIL, Mr Davies submits that the RAMP Governance Group was set up to ensure that Grainger had appropriate “governance and control”. It follows that the function and workings of the group clearly relates to the control exercised over Grainger by BOS, eventually through the UMA, which is a central issue in this action.

On behalf of BOS, Ms Phelps submits that these documents are irrelevant to the pleaded issues, not least because the selection of Grainger as the preferred asset manager took place in December 2010, well before the receivership. The pleaded issue is whether BOS subsequently “directed, interfered and/or intermeddled” with the Receivers to influence them to appoint Grainger, not how Grainger was originally chosen by BOS in preference to other managers. Ms Phelps also submits that any relevant documents are likely already to have been disclosed and that the request is unbounded in terms of timeframe and includes requests for documents which do not even mention VIL.

In my judgment, Ms Phelps’ submissions take an altogether too narrow approach to the issue of relevance. The nature of the relationship between BOS and Grainger is a central issue in the case, and the circumstances in which Grainger came to be chosen and the considerations then taken into account are highly likely to be relevant to that issue, even though that appointment had been made before the specific matters now complained of. As for the complaint that the request is “unbounded in time”, it seems to me that it is self-limiting, since it relates only to the period during which the appointment of Grainger was being discussed. That having been said, it seems to me that these two requests are duplicative, and that only the first is required fairly to resolve this issue.

As to Ms Phelps’ point that any relevant documents are likely already to have been disclosed, Mr Davies responds (in my judgment rightly) that that cannot be right, since the relevant minutes have not been disclosed, despite the searches (e.g. in the documents of Ms Firman and Mr Dakin) that have already taken place. That anomaly is not explained in the evidence, and Ms Phelps could not explain it in her submissions.

In the circumstances and taking into account the entirety of the evidence to which I have referred in paragraph 138 above, I am persuaded that it is appropriate to make the first order sought by VIL under this head.

VIL seeks an order that BOS should search for and disclose:

On behalf of VIL, Mr Davies submits that the contemporary documents show that the strategy for disposing of VIL’s property through Grainger was discussed at meetings of the CRE BSU Executive Committee (“Excom”). Mr Davies submits that such discussions are plainly relevant to the Undervalue Claims and causation. In his submission, documents going to the reasons why VIL was placed into BSU and the treatment VIL received within BSU, including the extent to which the Swaps featured in the Bank’s decision to place VIL into BSU and then into receivership are relevant to the issues in dispute. In this context, Excom’s role as BOS’s relevant decision-making body was significant.

As for the “Solutions” reports, Mr Davies submits by reference to the statements of the witnesses that BOS intends to call at trial that the Solutions Team was established to work alongside the relationship teams within BSU to assist them in supporting their customers and to help them to maximise realisations. It was the Solutions Team which developed the asset management strategy which became RAMP and which was implemented through Grainger.

For BOS, Ms Phelps again submits that these documents do not go to the pleaded issue of whether BOS “intermeddled” with the Receivers. In Ms Phelps’ submission, BOS’s internal discussions in relation to Grainger are unlikely to be relevant to that pleaded issue. In any event, the documents of Chris Canham (who was a member of Excom up to September 2014) and of Natasha Firman (who was part of the BSU

“Solutions” team) have already been searched and any relevant documents disclosed.

As with the previous category, it seems to me that Ms Phelps’ submissions take an altogether too narrow approach to the issue of relevance, and ignore the central importance to VIL’s pleaded case of the relationship between BOS and Grainger. As for Ms Phelps’ submission that any relevant documents will already have been disclosed, the fact remains that no minutes or reports have been disclosed: and I accept Mr Davies’ submission that it is unlikely that the Excom and/or the Solutions Team at no point referred to VIL in any of the minutes of their meetings or their reports.

In the circumstances and taking into account the entirety of the evidence to which I have referred in paragraph 144 above, I am persuaded that it is appropriate to make the orders sought by VIL under this head.

VIL seeks an order that BOS should search for and disclose “Documents in the repositories of Ian Guthrie (1 October 2010 to 30 September 2014) and Mark Cherry (1 October 2010 to 30 June 2014) using the keyword search terms set out in the

Mr Guthrie was a member of the RAMP Governance Group, and Mr Cherry was Head of Asset Management in the Solutions Team.

Mr Davies argues that the fact that Mr Guthrie was a member of the Governance Group is of itself a reason to add him as a custodian whose repository should be searched for relevant documents. I do not agree that that is sufficient, of itself, to justify an application for additional disclosure in relation to his documents at this stage. I accept Mr Harvey’s unchallenged evidence (Harvey 1 paragraph 128) that Mr Guthrie had nothing to do with VIL

However, it seems to me that Mr Cherry stands in a different position. Ms Phelps submits that there is no pleaded case of Mr Cherry’s involvement with VIL. That is correct: but the documents already disclosed by BOS show that Mr Cherry was involved in the decision relating to the re-basing of the value of the VIL portfolio, and that Ms Bouma of Grainger apparently kept Mr Cherry “posted” regarding developments with the disposal of the VIL portfolio. In my judgment, Mr Davies is right to submit that there are likely to be more emails either to or from Mr Cherry which relate directly to the Undervalue Claims - particularly to the pleaded case that the Receivers caused or allowed management and selling fees to be levied which were excessive and unreasonable.

In the circumstances and taking into account the entirety of the evidence to which I have referred in paragraph 150 above, I am persuaded that it is appropriate to make the order sought by VIL under this head in relation to Mr Cherry, but not in relation to Mr Guthrie.

VIL seeks an order that BOS should search the documents of Mr Arjan Brouwer for the period 1 May 2011 to 31 December 2013 using the search terms described in the Statement. The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 para 153(iv), Harvey 1 paras 164165 and Craig 4 para 184.

Mr Brouwer was an analyst within BSU in the lead up to and during the period that VIL was in administrative receivership.

In Mr Davies’ submission, it is clear from correspondence between Mr Brouwer and the Receivers that Mr Brouwer directed Grainger, through the Receivers, to carry out

On behalf of BOS, Mr Harvey accepts that Mr Brouwer “may have assisted in the management of [VIL]’s relationship with BOS following the transfer to BSU, and

In my judgment, Mr Brouwer’s documents are likely to be relevant to the Undervalue Claims, and there is a realistic prospect that the search will produce further disclosable documents. Given Mr Brouwer’s junior role, I have more hesitation as to whether it is sufficiently necessary for the just disposal of this action for me to order his repository to be searched: but, on balance, taking into account the entirety of the evidence to which I have referred in paragraph 155 above, I am persuaded that it is appropriate to make the order sought by VIL under this head in order fairly to resolve the issues in the Undervalue Claims.

VIL seeks an order that BOS should search and disclose “All CRE BSU Deleverage Advisory Forum presentations that refer to VIL”. The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 paras 108-136, Harvey 1 para 119 and Craig 4 para 149.

These documents relate to the process of de-leveraging BOS’s Corporate Real Estate carried out by BSU. One presentation has been disclosed which mentions VIL. In Mr Davies’ submission it is obvious why the way in which VIL’s assets might be liquidated quickly as a means of improving BOS’s balance sheet is relevant to both the purpose of appointing Grainger and also to the allegation that Grainger, as BOS’s appointed manager, managed and effected sales of many portfolio properties for BOS.

I do not agree. As Ms Phelps submits, there is no pleaded case that the purpose of RAMP (and the appointment of Grainger) was to improve BOS’s balance sheet by liquidating assets quickly at an undervalue. VIL’s narrative pleading raising a similar allegation was struck out by Sara Cockerill QC in January 2017.

I am not persuaded that it is appropriate to make the order sought by VIL under this head. In my judgment, disclosure of these documents is not necessary in order fairly to resolve the issues in the Undervalue Claims. I therefore decline to make the order sought by VIL under this part of the Disclosure and Amendment Application.

Additional disclosure in relation to the Misrepresentation and Breach of Duty Claims

VIL also seeks 8 categories of additional disclosure in relation to the Misrepresentation and Breach of Duty Claims.

First, VIL seeks an order that BOS should search for and disclose “Copies of all “Corporate Sales Weekly” emails (with attachments) that refer, either directly or indirectly, to VIL between 1 January 2008 and 1 March 2009”. The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 paras 102-107, Harvey 1 paras 62 to 64 and Craig 4 paras 105107.

In Mr Davies’ submission, the Corporate Sales Weekly emails are relevant because they contain candid internal bank commentary regarding significant deals at the time and the revenue generated from them for BOS. They may well shed light on BOS’s motivation for seeking to restructure VIL’s hedging as it did and for making the Value Representations. At the least, they are likely to contain information regarding the immediate profits generated by the Replacement Trades.

It was plain, in oral argument, that Ms Phelps did not accept that documents relevant to the motivation of the team which sold the Replacement Trades to VIL (e.g. documents relating to their bonus and other reward arrangements) would be relevant to the issue of how likely it was that they would (as VIL asserts) deliberately lie or be reckless as to the truth of what they said in order to procure a sale. In my judgment, this was again too narrow a view of relevance.

VIL has not, however, made a targeted request for disclosure of such documents. Instead, in this category and the others which follow, it has sought disclosure of documents which “might” or “may well” shed light on those issues. As Ms Phelps submits, that does not satisfy the requirements which would justify an order for additional disclosure.

I take into account the entirety of the evidence to which I have referred in paragraph 165 above. However, I am not persuaded that it is appropriate to make the order sought by VIL under this head in order fairly to resolve the issues in the Undervalue Claims. I therefore decline to make the order sought by VIL under this part of the Disclosure and Amendment Application.

Secondly under this heading, VIL seeks an order that BOS should search for and disclose "All iterations of the ID Revenue List which refer to Ventra or VIL during the period 2008 to 2010”. The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 paras 102-107, Harvey 1 paras 78-79 and Craig 4 paras 117-120.

Mr Davies’ submission on this item is that BOS has disclosed a spreadsheet of the customers which have generated the most revenue from interest rate derivative transactions in 2007/2008. VIL therefore seeks disclosure of any similar document which relates to the year 2008/2009 and which therefore contains information as to the revenue generated for BOS from the Replacement Trades.

Ms Phelps again submitted that “BOS’s alleged motives for making any representations are not relevant to the questions the Court will have to decide”. For the reasons explained in paragraph 167 above, that view is in my judgment mistaken.

However, in oral argument, Ms Phelps made the much better point that the Bank has already disclosed a document showing the profit which Mr Dolan (who made the Replacement Trades in 2009 on behalf of BOS) thought that he had booked for BOS:

I accept that submission. It is Mr Dolan’s motives and motivation that are primarily relevant to these issues, not any matters which were unknown to him. I take into account the entirety of the evidence to which I have referred in paragraph 170 above. However, I am not persuaded that it is appropriate to make the order sought by VIL under this head in order fairly to resolve the issues in the Misrepresentation Claims. I therefore decline to make the order sought by VIL under this part of the Disclosure and Amendment Application.

Thirdly, VIL seeks an order that BOS should search for and disclose:

Among the documents disclosed by BOS was an “excess compliance” pro forma, containing a request within BOS for an increase in the internal credit limit for VIL to take account of adverse market movements in relation to interest rates (which had increased VIL’s potential liabilities under the Swaps, for which BOS had to make internal provision). That pro forma makes a reference to there being no opportunity to “reprice the connection”.

Ms Craig explains that “a repricing opportunity allows a bank to maximise its income generated from the customer by restructuring the facility or facilities and/or hedging profile of that customer to take advantage of prevailing interest rates”. Based on that evidence, Mr Davies submits that these are straightforward and proportionate disclosure requests, relevant to BOS’s financial incentive to induce VIL to enter into the Replacement Trades.

In my judgment, Ms Phelps is correct to submit that, far from being targeted requests, these applications are in the nature of a “fishing expedition”, and do not justify an order for additional disclosure. As I have pointed out in connection with VIL’s previous request, it is Mr Dolan’s motives and motivation that are primarily relevant to these issues, not any matters which were unknown to him.

I take into account the entirety of the evidence to which I have referred in paragraph 175 above. However, I am not persuaded that it is appropriate to make the orders sought by VIL under this head in order fairly to resolve the issues in this action. I therefore decline to make the order sought by VIL under this part of the Disclosure and Amendment Application.

Fourthly, VIL seeks an order that BOS should search the documents of two further custodians using the search terms described in the Statement:

Mr Regan and Mr Croudace were both involved (as was Mr Dakin) in the decisionmaking process which led to the transfer of VIL into BSU. Mr Croudace was a relationship manager of VIL’s sister companies within Lloyds for some time prior to the merger between BOS and Lloyds. According to Mr Bishop (Bishop 7 paragraph 153(iii)), Mr Croudace appears to have been opposed to the transfer of VIL to BSU, and to have advocated an alternative approach which was ultimately over-ridden by Mr Regan and Mr Dakin. BOS has served a witness statement from Mr Dakin and from Warren Shave. Mr Croudace was Mr Shave’s line manager. However, no witness statements have been served from Mr Regan or Mr Croudace.

According to Ms Craig (Craig 4 para 161(iii)):

In Mr Davies’ submission, it is BOS’s opinion (and not just the actual state of VIL)

Ms Phelps takes issue with these submissions. She argues that BOS’s subjective view of VIL at the time it was transferred to BSU is not a significant issue in the case, and that what really matters is the actual financial position of VIL at the time. In Ms Phelps’ submission, the arguments now put forward by Mr Davies are an echo of the case struck out by Sara Cockerill QC, which was that the transfer into BSU was itself wrongful, being part of an overall plan to force VIL into default and insolvency in order to assist in de-leveraging the balance sheet of BOS. It is not now alleged that the transfer to BSU was wrongful, or that the transfer itself cause any loss. What caused the loss was the sale of the portfolio by the Receivers.

Ms Phelps has another argument, which is that there has already been sufficient disclosure about what happened when VIL was transferred into BSU. This, Ms Phelps argued, is demonstrated to an extent by the various documents relied upon by VIL to demonstrate the conflicting views of Mr Dakin and Mr Croudace. The material that the three men who took the decision had before them at the time has already been disclosed, as have the credit papers that were submitted to the credit committees during the period when VIL’s accounts were being managed by BSU.

Having regard to the terms of Issue 22(c), it seems to me that there is force in Mr Davies’ submission that the issue of what BOS would have been likely to do in the counterfactual situation that VIL had not entered into the Replacement Trades is one of the important issues in this case. Yet again, it seems to me that BOS has taken entirely too narrow a view of what is relevant. VIL’s actual objective financial position in that counterfactual situation would plainly be a highly material component in any assessment of what would have been likely to have happened: but the court will also be likely to have to form a view about what BOS subjectively would have done in that counterfactual situation in order to assess VIL’s case as to its loss.

Even so, I am not persuaded that a trawl through the document repositories of Mr Regan or Mr Croudace would be likely to produce any material of sufficient importance that has not already been disclosed. The documents already disclosed sufficiently show the conflicting views of the people involved on the basis of the material then before them. The relevant issue, though, is what view the decisiontakers in BOS would have formed in a different (counterfactual) situation, and therefore inevitably by reference to entirely different material. It seems to me to be quite unlikely that that enquiry would be sufficiently illuminated by this further disclosure to justify my making an order.

I take into account the entirety of the evidence to which I have referred in paragraph 180 above. However, I am not persuaded that it is appropriate to make the orders sought by VIL under this head in order fairly to resolve the issues in the Misrepresentation Claims. I therefore decline to make the order sought by VIL under this part of the Disclosure and Amendment Application.

Fifthly, VIL seeks an order that BOS should search for and disclose “Minutes and/or reports of all “review” meetings that refer to VIL”. The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 para 108-136, Harvey 1 paras 101 and 130-131 and Craig 4 para 138.

Mr Davies submits that VIL was a “special mention” customer due to its size/complexity, of the kind that would be reviewed at these monthly meetings. The minutes of such meetings would therefore be “focussed summaries of how the bank viewed VIL”. These minutes and reports would therefore be relevant for the same reasons as the documents of Mr Regan and Mr Croudace, in that they would shed light on VIL’s counterfactual case. One such report has been disclosed but, in Mr Davies’ submission, VIL must have been mentioned at more than one of these monthly meetings.

Ms Phelps again submits that these documents are not relevant to any pleaded issue. In any event, BOS has searched the documents of 14 BSU custodians for relevant documents as part of its original disclosure exercise. Any relevant documents would already have been disclosed.

For the reasons that I gave in considering VIL’s application for the documents of Mr Regan and Mr Croudace, it seems to me unlikely that these documents would shed sufficient light on VIL’s counterfactual case to justify an order for further disclosure.

I take into account the entirety of the evidence to which I have referred in paragraph 189 above. However, I am not persuaded that it is appropriate to make the orders sought by VIL under this head in order fairly to resolve any of the issues in this action. I therefore decline to make the order sought by VIL under this part of the Disclosure and Amendment Application.

Sixthly, VIL seeks an order that BOS should search and disclose “the following documents in the repositories of Dianne Cornes between 1 January 2008 and 1 March 2009: (i) Correspondence responsive to the keyword search terms set out in the Statement; and (ii) Documents relating to the S&U Forms disclosed to date or to be disclosed in accordance with paragraph 70 of the First Witness Statement of Christopher Harvey dated 28 May 2019”. The evidence relevant to this part of the

Ms Cornes was Head of Corporate Sales for BOS Treasury, and was the person who sent the “Corporate Weekly Sales” email. As Ms Craig explains (Craig 4 para 110), it was a requirement within BOS that S&U (“Suitability and Understanding”) Forms

In Mr Davies’ submission, this shows that documents in Ms Cornes’ custody could be relevant to:

BOS resists VIL’s request that it should conduct a detailed trawl of Ms Cornes’ documents. Ms Phelps argues that the orders requested by VIL are not justified by any considerations of relevance and in any event are disproportionately wide. Ms Phelps points out that there is no suggestion that Ms Cornes ever communicated directly with VIL, and that any relevant communications between her and Mr Dolan

BOS has agreed (Harvey 1 para 70) to re-review its disclosure documents and to disclose any further S&U Forms relating to VIL which it is able to locate. That seems to me to be entirely proper. Those forms ought to have been disclosed under the existing order for Standard Disclosure.

It also seems to me that BOS should conduct a specific search for Mr Dolan’s response (if any) to the email from Ms Cornes to Mr Dolan which is quoted in Craig 4 para 111. That response (if any) should already have been disclosed as a result of the searches conducted on Mr Dolan’s documents. It seems to me that Ms Craig is correct to say (Craig 4 para 112) that it is probable that Mr Dolan would have responded to Ms Cornes’ email: and, if he did, and if that response has not been disclosed (as Ms Craig asserts), that might suggest that something has gone wrong in relation to the disclosure of Mr Dolan’s documents. In that event, it would be proper for BOS to review that aspect of its disclosure.

However, apart from these specific matters, I am not persuaded by Mr Davies’ submissions that a search of Ms Cornes’ documents is likely to produce anything of sufficient relevance and importance to justify an order for additional disclosure. Any S&U Forms relating to VIL are to be disclosed. Any relevant correspondence between Ms Cornes and Mr Dolan in the context of those S&U Forms ought already to have been disclosed. Any relevant views of Ms Cornes about VIL’s and Mr Palasuntheram’s level of sophistication and experience are, in the nature of things, likely to have been recorded in that correspondence.

Beyond that, I struggle to see how any of the matters relied on by Mr Davies is sufficiently likely to be illuminated by Ms Cornes’ documents to justify an order for additional disclosure.

I take into account the entirety of the evidence to which I have referred in paragraph 194 above. However, I am not persuaded that it is appropriate to make the orders sought by VIL under this head in order fairly to resolve any of the issues in this action. I therefore decline to make the order sought by VIL under this part of the Disclosure and Amendment Application.

Seventhly, VIL seeks an order that BOS should search the documents of 3 further custodians for the period from 1 August 2008 to 1 March 2009, using the search terms described in the Statement, plus “PFE” and/or “MTM” in the same document as “Dolan”: (1) Mr Alec Odeide; (2) Mr Colin Burke; and (3) Mr David Cunningham. The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 para 153(i), Harvey 1 paras 161 and 162, and Craig 4 paras 179 to 181.

According to Mr Bishop (Bishop 7 para 153(i)), Mr Odeide, Mr Burke and Mr Cunningham were all employed in BOS Treasury Department and:

According to Mr Davies, it is clear from this correspondence that Mr Dolan was influenced in his selection of the Replacement Trades by what he was told by Mr Odeide, Mr Burke and Mr Cunningham regarding the PFE and the MTM of the Original Trades. The documents sought are therefore relevant Mr Dolan’s state of mind in proposing the Replacement Trades to VIL (Issues 9(a) and (f) in the List of Common Ground and Issues). The date range sought is only 7 months, and the request is therefore reasonable and proportionate.

VIL also seeks an order that BOS should search the MLC (“Murex Limit Controller”) System for the period from 1 August 2008 to 1 March 2009, using the search terms described in paragraph 7 of the Statement. The evidence relevant to this part of the Disclosure and Amendment Application is principally to be found in Bishop 7 para 153(ii), Harvey 1 paras 160 and 161, and Craig 4 paras 185-186.

Again according to Mr Bishop (Bishop 7 para 153(ii)):

According to Ms Craig (Craig 4 para 186), Mr Dolan in his witness statement:

In Mr Davies’ submission, the documents held in the MLC system are likely to include documents which evidence Mr Dolan’s state of mind and the information that was available to him at the time he sold the Replacement Trades. Like the documents of Mr Odeide, Mr Burke and Mr Cunningham, such documents are directly relevant to Issues 5, 9(a) and 9(f).

In response, Ms Phelps submits that BOS’s internal views about “MTM” and “PFE” are irrelevant to the issues in the case. It is accepted by BOS that the Original Trades were in fact out of the money, and that Mr Dolan knew that. Anything else is irrelevant. Ms Phelps also asserts that this issue has already been decided by Sara Cockerill QC in paragraphs 77 to 83 of her judgment dated 3 March 2017.

I do not accept those submissions. At the time when Ms Cockerill QC handed down her judgment, VIL’s claim was based on negligent misrepresentation, and there was no allegation of fraud. That has now changed. Mr Dolan’s state of mind, and anything that may (on VIL’s case) have motivated him to lie or to be reckless as to the truth of what he was representing (allegations which I must make clear that Mr Dolan strenuously denies) is plainly relevant to the case in fraud that VIL is now putting forward in relation to the Value Representations. Yet again, it seems to me that BOS has taken far too narrow and self-serving a view of relevance.

Even so, I am at a loss to understand how anything of substance relevant to Mr Dolan’s state of mind is likely to be revealed by a search of the documents of these additional custodians or of the MLC system. Any communications with Mr Dolan should have been disclosed as a result of the searches carried out of Mr Dolan’s own documents. The relevant issue is what Mr Dolan himself knew or believed, not what the “true” position (to use Ms Craig’s words) was or was believed to be by others within BOS.

I take into account the entirety of the evidence to which I have referred in paragraphs 203 and 206 above. However, I am not persuaded that it is appropriate to make the orders sought by VIL under this head in order fairly to resolve any of the issues in

Eighthly, VIL seeks an order for disclosure of:

According to Mr Bishop (Bishop 7 paras 139-140), documents disclosed by BOS show that the Chief Executive of BOS, Andy Hornby, had a meeting with the Prime Minister and the Chancellor on or about 15 April 2008, and thereafter had further meetings with the Chancellor and the CEOs of other banks which continued at least until May 2008. In Mr Bishop’s words, these meetings involved:

Again according to Mr Bishop (Bishop 7 paras 141-142):

In Mr Davies’ submission, the knowledge of BOS’s senior management of LIBOR manipulation and, therefore, of the falsity of the LIBOR Representations will be a key issue to be determined at trial.

In Ms Phelps’ submission, these requests are obviously fishing, since there is no pleaded case in relation to what was said in any of these meetings. Alternatively, Ms Phelps submits that an order in the terms sought by VIL is not necessary for the just disposal of the proceedings and/or is not reasonable and proportionate. As explained by Mr Harvey (Harvey 1 para 151) BOS has already conducted a significant disclosure and review exercise over the documents that are most likely to contain evidence relevant to the LIBOR issues, including (but in no way limited to) a search for the word “LIBOR” over Mr Hornby’s available data for the period from 1 January 2006 to 31 December 2012. As a result (in Mr Harvey’s words):

I do not accept Ms Phelps’ submission that these requests are obviously fishing. I do, however, accept her submission that the extensive disclosure exercise which has already been carried out means that an order in the terms now sought by VIL in relation to Mr Hornby’s documents is neither necessary for the just disposal of these proceedings nor reasonable and proportionate.

I take into account the entirety of the evidence to which I have referred in paragraph 214 above. However, I am not persuaded that it is appropriate to make the order sought by VIL under this head in order fairly to resolve any of the issues in this action. I therefore decline to make the order sought by VIL under this part of the Disclosure and Amendment Application

Further Information

Finally, VIL seeks two categories of Further Information.

First, VIL seeks an order that BOS should provide further information concerning two matters concerning the MTM of the various trades:

Mr Davies submits that this information (and these documents) evidencing the information about the “value” of the Original Trades, including any graphs and/or data informing Mr Dolan of the magnitude of the MTM of the Original Trades is relevant to Mr Dolan’s state of mind, and therefore should be disclosed. In Mr Davies’ submission, Mr Dolan’s awareness of the financial benefits to BOS of transacting the Replacement Trades is relevant to the purpose for which he made the Value Representations and his motivation to act (as VIL alleges, but he denies) fraudulently in making the Value Representations.

In answer, Ms Phelps once again submits that levels of MTM and revenue are not

“matters in dispute in the proceedings” for the purposes of CPR part 18, and are irrelevant. For the reasons given in paragraph 211 above, I do not accept that submission. Evidence relevant to Mr Dolan’s state of mind and to any incentive he may have had to act wrongfully are plainly relevant: and if BOS has conducted its disclosure exercise on the basis that they are not, then it must revisit that exercise and give proper disclosure.

However, under paragraph 1.2 of CPR PD18, requests such as this for further information “should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable [the requesting] party to prepare his own case

By contrast, the request set out in paragraph 222.2 is a targeted one, specific to Mr Dolan and to the information available to him at the relevant time. It is therefore directed to a central issue. The task of answering the request should not be unduly burdensome to BOS.

In my judgment, this request does meet the criteria in paragraph 1.2 of PD18. I am therefore prepared to make the order sought by VIL in paragraph 8(g) of the Draft Order.

Secondly under this heading, VIL seeks an order that BOS should provide the following further information in relation to documents emanating from Lloyds:

In Mr Davies’ submission, VIL has reason to believe that relevant documents in the repositories of Lloyds are in the “control” of BOS for the purposes of CPR 31.8 and therefore should have been (but have not been) searched using the keyword search terms in the Statement. VIL’s reason so to believe is based on the 13 documents emanating from Lloyds that were included in BOS’s disclosure.

According to BOS, these documents came into its possession during the period in which two other Lloyds companies were defendants to the present proceedings. According to Ms Craig (Craig 4 para 101):

In Ms Phelps’ submission, this request does not meet the criteria in paragraph 1.2 of CPR PD18. VIL simply does not need a more detailed account of precisely how these Lloyds documents came to be collated and provided to BOS. As Mr Harvey has explained (Harvey 1 para 57) the Lloyds documents which BOS has disclosed:

In my judgment, the further information sought by this request is not reasonably necessary to enable VIL to prepare his own case or to understand the case it has to meet. Nor is the order sought proportionate. I accept Ms Phelps’ submission that VIL does not need this information. I also accept Ms Phelps’ submission that the exercise on which VIL is embarked, of which this request for further information is a first stage, is not a reasonable and proportionate one. It would therefore not be in accordance with the overriding objective, or the requirements of PD18, or the requirements of PD51U for me to make the order sought under this part of the Disclosure and Amendment Application.

The Adjournment Application and the way forward

For the reasons given in section (F) above, I have refused VIL’s application for an order requiring BOS to disclose the documents of Grainger and Dickinson Dees. For the reasons given in Section (G) above, I have refused VIL’s application to amend to plead the Original Trades Amendments. It was common ground that, had I granted either of those applications, it would have been necessary for me to adjourn the trial date. Since I have refused those applications, they cannot in themselves provide grounds to support VIL’s adjournment application.

For the reasons given in section (H) above, I have granted VIL’s application to make the Rescission Amendments. In my judgment, it should be possible for the parties to deal with the necessary consequential amendments to their statements of case and any additional evidence required within the period between now and 15 January 2020, when the trial is due to begin.

I have also granted, for the reasons given in sections (I) and (J) above, a small number of VIL’s more detailed requests for additional disclosure. Again, in my judgment, it should be possible for BOS (which is a large organisation with substantial resources available to it, both internally and externally) to complete this small amount of additional disclosure very promptly, so as to enable the parties to take that evidence into account in their statement of case and evidence well prior to trial.

It follows that none of the orders which I have made in favour of VIL on its various applications provides any ground to support VIL’s adjournment application.

I have considered whether, having regard to the potential importance of documents from the files of Grainger and Dickinson Dees to the case, and to the possibility that VIL will now seek to obtain these documents by other means, I ought as a matter of case management (and as VIL urges) to vacate the present date and to fix a suitable timetable allowing for that to happen.

In my judgment, however, that would be premature. If VIL does obtain these files, the evidential value (if any) of what (if anything) any relevant documents from those files may reveal may be a highly material consideration in the exercise of balancing

As I have explained in paragraph 19 above, it is no longer part of VIL’s case that the time required for this trial cannot be accommodated by the court starting on 15 January 2020.

In my judgment there are no other sufficiently compelling reasons for me to order the adjournment of that trial date. Parties and the Court have a legitimate expectation that trial fixtures will be kept. Taking all these matters into account, I therefore dismiss the Adjournment Application.

Paragraph A1.10 of the Commercial Court Guide says that:

The applications which I have dealt with at this hearing, and the associated witness statements and exhibited correspondence that I have read in connection with them, have unfortunately not demonstrated these vital characteristics. As I have explained in a number of places in this judgment, BOS has been inclined to adopt an unreasonably narrow and self-serving approach to relevance in performing its disclosure obligations. On the other side, the large number of VIL’s applications which I have refused as unnecessary or misconceived demonstrate a lack of focus on the really important issues and on the most cost-effective and proportionate way of getting what is really necessary. The correspondence between Hausfeld and DLA Piper has seemed on occasions to be a dialogue of the deaf, neither side engaging properly with the logic of the other’s position. The result has been a considerable waste of the parties’ and the Court’s resources. If proper regard had been had on both sides to the overriding objective, the application bundle for these interim applications would not have been 19 files long.

If this case is to be got ready for trial by 15 January 2020, both sides will need to demonstrate a much higher level of co-operation and realism. There is sufficient

The first thing which needs to be done is for BOS to give the additional disclosure which I have ordered. That must be done very promptly.

Concurrently with that, VIL needs swiftly to put forward its draft Re-Amended Particulars of Claim, setting out in the light of my rulings and of the material now available to it the case which it proposes to make at trial. In that connection, I draw attention to the principles set out in section (E1) above, in particular the requirement for brevity. The second draft of the proposed re-amendment that VIL put before me in the course of the hearing was far too long and diffuse. Statements of case in the Commercial Court must be concise and should include only those factual allegations which are necessary to enable the other party to know what case it has to meet. Evidence should not be included, and it is usually unnecessary and unhelpful to include extensive quotations from documents or detailed particulars. What is required is to make clear the general nature of the case.

I mention this, not only to encourage VIL to obey the rules of pleading, but also to encourage BOS not to take technical objections in response to VIL’s draft. Statements of case in the Commercial Court exist to serve a purpose: and if that purpose can better be served by other means, then the court has ample power to dispense entirely with statements of case, or to direct that all that is required is an outline: see paragraph L2.1 of the Commercial Court Guide. Many important cases have in the past been tried without pleadings, or on the basis that the affidavits or witness statements filed in connection with interim applications should serve as the statements of case.

BOS already has advance notice in correspondence and in the evidence filed in connection with these applications of many of the matters which VIL is likely to introduce by way of re-amendment. The Court is unlikely to be sympathetic to objections to VIL’s pleading which are not based on some real and substantial prejudice to BOS which could not realistically be overcome by the cooperation, realism and effort that the Court expects of those appearing before it- for example, by the service of a short supplemental or additional witness statement to deal with a new point.

It will be necessary for me to set a timetable for completion of these matters and of all the other stages necessary to get this case ready for trial by 15 January 2020. It will also be necessary for me to set a revised length for the trial. As to that, my present inclination is to allocate 8 Court weeks to the trial: 7 weeks (28 court days), for the hearing, to include 3 days’ judicial pre-reading, followed by a week’s break for the preparation of written closings, and then a further week for closings (2 days

I encourage the parties to attempt to agree these matters in advance of the hand-down of this judgment, If the parties are for any reason not able to agree, I will hear submissions on those and any consequential matters, and give my ruling then.

Postscript

After I made my judgment available to the parties in draft, I received from VIL a request that I should revise the draft so as: (1) to make clear that VIL does not accept

I have acceded to the first of these requests in paragraphs 34 and 35 above. As to the second request, it seems to me that the reasons given by me in paragraph 95 above, although briefly expressed, are already sufficiently clear. As to the third of VIL’s requests, I had already added one or two sentences of clarification to my judgment, in the normal course of checking it again for typographical errors and infelicities of expression, before receiving VIL’s request. In my judgment, no further clarification of that section of my judgment is now required.

Summary

For the reasons set out above:

I encourage the parties to agree a timetable for completion of all of the stages necessary to get this case ready for trial by 15 January 2020, and to agree a revised length of trial. If these matters cannot be agreed, I will hear the parties’ submissions on these matters and on any consequential issues, when I hand this judgment down on Tuesday, 30 July 2019.

I am grateful to counsel and their teams for their assistance.