Hall v Saunders Law Ltd & Ors

This dispute concerns the extent of the duties (if any) owed by solicitors who conduct funded litigation to those who provide the litigation funding. The claimant in this action, Mr John Hall (“Mr Hall”), sues in his own right and as assignee of 1^st Class Legal (IS) Ltd, a litigation funder that is now in liquidation. The second defendant,

In very broad outline, the complaint made in this action is that the Solicitors did not communicate to the Funder various pessimistic views expressed by counsel as to the prospects of success of the action being funded. It is said on behalf of Mr Hall that those omissions were a breach of the tripartite funding agreement between the Funder, Saunders and Malicorp Limited (“Malicorp”), the claimant in the funded action. I shall refer to that agreement, as it is referred to in the Particulars of Claim, as “the Saunders Funding Agreement”. Mr Hall also asserts that those omissions were a breach of a common law duty of care and/or of a fiduciary duty owed by the Solicitors to the Funder. Finally, Mr Hall alleges that those omissions were each the result of a conscious decision made by Mr Karmakar personally, as a result of which Mr Hall has (he says) a claim against Mr Karmakar in the tort of deceit.

The Solicitors now apply for the action to be summarily dismissed, relying both on CPR part 24 and upon the court’s powers under CPR part 3.4(2) to strike out a statement of case. Again in very broad outline, the Solicitors’ case is that that the claim for breach of contract is bound to fail because, on the true interpretation of the Saunders Funding Agreement, the Solicitors were themselves under no duty to pass on to the Funder the pessimistic views of counsel about the action’s prospects of success. Any such duty was owed only by their client, Malicorp. The Solicitors also say that, in the absence of any such contractual duty to the Funder, they can be under no equivalent tortious or fiduciary duty. The Solicitors therefore say that the claim against them, whether based on contract, tort or fiduciary duty, is misconceived in law. As for the action in deceit against Mr Karmakar personally, the Solicitors say that that too is bound to fail, as it is not based upon any positive statement but only upon a pure omission to speak. They also make various complaints about what they say is the failure of Mr Hall’s advisers to plead such a serious allegation properly and specifically in the Particulars of Claim.

The Solicitors’ application was issued on 27 September 2019. It was supported by two witness statements: the first witness statement of Mr Jack Holling, a senior associate in the firm of solicitors acting for the Solicitors, which was made on 26 September 2019; and the first witness statement of Mr Karmakar made on 27 September 2019. Mr Hall’s response to the application is supported by the first witness statement of Ms Melissa Worth, who is a partner in the solicitors acting for

At least for the purposes of this application, the essential background facts were not in dispute:

The Saunders Funding Agreement seems to me to have been drafted to complement the ATE Policy. Clauses 3 to 5 set out the agreement of the Funder to provide the

“Total Funding Amount”, which was to be released at Saunders’ request in accordance with a Drawdown Schedule to fund the Enforcement Proceedings.

Clause 6 of the Saunders Funding Agreement contemplated two situations.

Clause 9 of the Saunders Funding Agreement is headed “Control of the Legal Proceedings” and provides as follows:

Clause 11 of the Saunders Funding Agreement, headed “Monitoring the Legal Proceedings” provides:

Clause 13 of the Saunders Funding Agreement is headed “ATE Insurance”, and provides as follows:

Clause 15 of the Saunders Funding Agreement contains a number of undertakings and warranties given by Malicorp to the Funder. Clauses 15.3 and 15.4 provide that:

Clause 18 of the Saunders Funding Agreement contains provisions entitling the Funder to refuse further funding on giving 21 Business Days written notice where:

Before I turn to consider the various arguments that have been advanced on this application, it is convenient to mention the proper approach to an application of this kind.

It was common ground that the relevant principles by which the court should be guided are those summarised in the judgments of Lewison J (as he then was) in JD Weatherspoon Plc v Van de Berg & Co Ltd (Footnote: ¹) at paragraph [4] and in Easy Air Ltd (t/a Openair) v Opal Telecom Ltd (Footnote: ²) at paragraph [15]. The first six of those principles are stated in materially identical terms in both judgments:

For the Solicitors, Mr Shapiro QC emphasised paragraph (vii) of the summary in the Easy Air case:

By contrast, Mr Mitchell QC on behalf of Mr Hall laid stress on the different paragraph (vii) of the summary given in the JD Weatherspoon case, where Lewison J observed that:

In my judgment, there is no tension whatsoever between these different concluding paragraphs in Lewison J’s formulations of the correct approach, both of which are amply supported by authority. The issue of whether a case can properly be disposed of without a trial is one of proper case management and procedural justice. In cases where the relevant law is in a state of incremental development or of uncertainty, a court will for sound practical reasons usually be reluctant to come to any final conclusion on the basis of assumed rather than actual facts. As Mummery LJ observed in Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Co 100 Ltd (Footnote: ³)(a case cited by Lewison J):

However, where a point of law or construction which is not fact-sensitive (or where the court can be confident that it is seized of all the relevant facts) is both short and likely to be determinative of the whole (or at least of a substantial part) of the case, the overriding objective under CPR 1.1(1) of dealing with cases justly and at proportionate cost will usually favour summary determination.

Applying those principles, I now turn to consider the Solicitors’ arguments that the Particulars of Claim disclose no reasonable grounds for the claims advanced on behalf of Mr Hall and/or that Mr Hall’s case has no realistic prospects of success on any of the causes of action which have been pleaded on his behalf and that there is no other compelling reason why the case should be disposed of at a trial.

I begin with Mr Hall’s case (pleaded in paragraph 63 of the Particulars of Claim) that the “instances of non-reporting” which I have summarised in sub-paragraphs 5.18 to

above “all amounted to breaches of the Saunders Funding Agreement”.

Paragraphs 39 to 41 of the Particulars of Claim appear under the heading “Reporting obligations imposed on Saunders”. Paragraphs 39 and 40 quote from clauses 9.2.1.4 and 9.3 of the Saunders Funding Agreement (Footnote: ⁴). Paragraph 41 then pleads that:

On behalf of the Solicitors, Mr Shapiro drew my attention to the fact that clause

As to the allegation in paragraph 41(a) of the Particulars of Claim that clause 9.2.1.4 records a present and continuing instruction from Malicorp to Saunders, Mr Shapiro submitted that the existence of any such instruction would make redundant Malicorp’s undertaking in clause 15.4 (Footnote: ⁶) “to instruct [Saunders] immediately to inform the Funder” in the event that, after the date of the Saunders Funding Agreement,

With regard to the suggestion that the terms of the ATE Policy should influence the interpretation of clause 9.2.1.4, Mr Shapiro pointed out that neither the Funder nor Saunders were parties to the ATE policy, which was a contract between Gable and Malicorp. In Mr Shapiro’s submission, the terms of the tri-partite contractual relationship between the Funder, Malicorp and Saunders are fully set out in the Saunders Funding Agreement and nowhere else.

In Mr Shapiro’s submission, the pleading in paragraphs 41(a) and (b) of the Particulars of Claim involves an attempt, by reference to the commercial context, to read into the plain words of clause 9.1.2.4 obligations that are simply not there. As to paragraph 9.3, “the parties” referred to there (as is apparent from the wording) are simply Malicorp and the Funder. In any event, clause 9.3 is purely prohibitory. It imposes no positive obligations, but only requires the parties to refrain from acting in a particular way.

In support of his submissions, Mr Shapiro drew my attention to the observations in paragraphs [15] to [22] of the judgment of Lord Neuberger of Abbotsbury PSC in Arnold v Britton (Footnote: ⁷) and in paragraphs [8] to [14] in the judgment of Lord Hodge JSC in Wood v Capita Insurance Services Ltd (Footnote: ⁸). Mr Shapiro also referred me to the recent helpful summary of the principles of contractual interpretation given by HHJ Pelling QC in TAQA Bratani Limited v Rockrose UKCS8 LLC (Footnote: ⁹).

Mr Shapiro also drew my attention to the principles applicable to the implication of terms, which were comprehensively set out by the Supreme Court in Marks and Spencer Plc v BNP Paribas Securities Services Trust Co (Jersey) Limited (Footnote: ¹⁰). These, again, were recently and helpfully summarised by HHJ Pelling QC in TAQA Bratani Limited v Rockrose UKCS8 LLC¹², as follows:

In Mr Shapiro’s submission, the circumstances of the present case do not come close to meeting these requirements, particularly the stringent requirement of necessity. Given the extent of the reporting obligations expressly imposed upon Malicorp, there is no necessity for any overlapping reporting obligations to be imposed upon Saunders. The Saunders Funding Agreement does not lack commercial or practical coherence without them.

On behalf of Mr Hall, Mr Mitchell took issue with Mr Shapiro’s dismissal of the terms of the ATE Policy as irrelevant to the proper interpretation of the Saunders Funding Agreement. In Mr Mitchell’s submission, the Saunders Funding Agreement and the ATE Policy administered by the Funder formed part of a suite of transaction documents that were intended to work together. He also submitted that, for the purposes of this application, I should assume that Mr Karmakar - and through Mr

In Mr Mitchell’s submission, these facts form a vital part of the factual background to the Saunders Funding Agreement and against which its provisions should be interpreted. In that connection, Mr Mitchell drew my attention (like Mr Shapiro) to passages in the judgment of Lord Neuberger of Abbotsbury PSC in Arnold v Britton (Footnote: ¹³) and also to the observations of Lord Mance JSC in Re Sigma Finance Corp (Footnote: ¹⁴) on the danger of focusing too narrowly on a critical phrase and of failing to set it in its commercial context and in the landscape of the instrument as a whole (Footnote: ¹⁵).

Against that background, Mr Mitchell submitted in support of the construction pleaded in paragraph 41(a) of the Particulars of Claim - that clause 9.2.1.4 recorded an instruction by Malicorp to Saunders - as follows:

In support of the construction pleaded in paragraph 41(b) of the Particulars of Claim - that clause 9.2.1.4 imposed a direct obligation on Saunders - Mr Mitchell similarly submitted that:

In oral argument, Mr Mitchell outlined an alternative way of putting his client’s case. The second sentence of clause 13.2 of the Saunders Funding Agreement (Footnote: ¹⁶) provides that:

For the Solicitors, Mr Shapiro did not object to Mr Mitchell raising this alternative argument at the hearing, even though it had not been presaged in Mr Mitchell’s Skeleton Argument. He did, however, submit that this alternative way of putting Mr

The issue of the correct interpretations to be given to clauses 9.2.1.4, 9.3 and 13.2 of the Saunders Funding Agreement is, at heart, a short point (or series of points) of law. I am satisfied that I have available to me all of the facts relevant to the interpretation of those clauses, and that it would therefore be in accordance with the overriding objective for me to determine those issues summarily.

As to those facts, I accept Mr Mitchell’s submission that, for the purposes of this application, I must assume that Mr Karmakar - and through Mr Karmakar, Saunders - were aware of the terms of the ATE Policy. In those circumstances, I also accept his submission that the terms of the ATE Policy form part of the admissible background known to both parties by reference to which the terms of the Saunders Funding Agreement fall to be interpreted. Indeed, it seems to me to be plain that these two agreements were intended by the Funder to be complementary to each other as integral parts of the commercial arrangements for funding the Enforcement Proceedings.

Furthermore, it seems to me that for the purposes of this application I should also assume (without deciding) in Mr Hall’s favour that, although the ATE Policy is in form simply a bilateral contract of insurance between Malicorp and Gable, it is arguable that the “responsibilities” undertaken by Balsara in clause 4 of the ATE Policy would have been enforceable against them by Gable - perhaps under some wider contract constituted by Balsara’s signature to the Proposal Form (Footnote: ¹⁸) and their acceptance of the benefit of the funding provided to Malicorp under the commercial arrangements constituted by the ATE Policy and the Balsara Funding Agreement (Footnote: ¹⁹). I am further prepared to assume in Mr Hall’s favour for the purposes of this application that it is arguable that those obligations would similarly have been enforceable by Gable against Saunders, after Saunders took over the conduct of the Enforcement Proceedings (Footnote: ²⁰).

However, the present action involves no claim by Gable. It is brought by Mr Hall as assignee of the rights of the Funder. The issues which I have to determine are therefore concerned exclusively with the nature and extent of the contractual duties (if any) owed by Saunders to the Funder. The duties owed by Saunders to Gable may form part of the relevant background to those issues. But it does not follow from the fact that Saunders may have owed a duty to Gable that it owes a like duty to the Funder under the terms of the Saunders Funding Agreement.

Mr Hall’s presently pleaded case is founded upon clause 9.2.1.4 of the Saunders Funding Agreement. The first way that that case is put on his behalf in paragraph 41(a) of the Particulars of Claim is that clause 9.2.1.4 amounts to a continuing instruction given by Malicorp to Saunders.

In my judgment, clause 9.2.1.4 – whether read on its own or in conjunction with clause 9.3 - does not amount to an instruction by Malicorp to Saunders. Even when set in their commercial context and in the landscape of the instrument as a whole, that is simply not what the words of clause 9.2.1.4 say. The opening words of that

There is a further, and perhaps more fundamental, objection to Mr Hall’s reliance upon the interpretation of clause 9.2.1.4 which is pleaded in paragraph 41(a). Even if, contrary to my view, clause 9.2.1.4 did amount to an instruction by Malicorp to Saunders, any breach of that instruction would be actionable by Malicorp (as Saunders’ client and the person who gave the instruction) rather than by the Funder.

The second way in which Mr Hall’s case is put in paragraph 41(b) of the Particulars of Claim is that that clause itself (at least when read with clause 9.3) imposes a contractual reporting obligation on Saunders. In my judgment clause 9.2.1.4 - whether read on its own or in conjunction with clause 9.3 - does not impose any such free-standing obligation on Saunders to the Funder. Again, even when set in their commercial context and in the landscape of the instrument as a whole, that is simply not what the words of clause 9.2.1.4 say. As Mr Shapiro submitted, at no point does clause 9.2 say “the Solicitors shall”. It therefore does not expressly impose any obligations on Saunders: and there is no basis for implying any such obligations, since the Saunders Funding Agreement does not lack commercial or practical coherence without them. The reporting obligations imposed on Malicorp already provide protection to the Funder. It might perhaps have been a better bargain for the Funder if it had also imposed such obligations on Saunders: but “necessity is not established by showing that the contract would be improved by the addition” (Footnote: ²¹) of the suggested implied term. Both when interpreting a contract and also when considering the implication of terms, the task of the court “is to identify what the parties have agreed, not what the court thinks that they should have agreed” (Footnote: ²²).

Turning to clause 9.3, it seems to me that Mr Mitchell’s submissions as to the effect of that clause seek to put on that very general provision a weight which it cannot bear. Clause 9.3 imposes a prohibition. It requires the parties “not to do or permit to be done” particular things. In that respect, it seems to me to be akin to the term which is often (when it is not express) implied into commercial contracts, to the effect that the parties “shall do nothing of their own motion” to prevent performance (Footnote: ²³). I do not accept Mr Shapiro’s argument that “the parties” referred to in clause 9.3 exclude Saunders. There is, however, nothing in the wording of clause

to support Mr Mitchell’s ingenious argument that, by virtue of clause 9.3,

In my judgment, the first step in that argument mis-states the true legal position, and the second step does not follow from the first. I accept Mr Shapiro’s argument that clause 9.3 is concerned, not with prohibiting omissions, but with prohibiting positive acts. Omitting to do something - in this case failing to pass on pessimistic advice - will therefore not fall within the scope of 9.3. Since Malicorp’s omission (although possibly a breach of clause 9.2.1.4) is not itself something that comes within the scope of clause 9.3, there can be no obligation on Saunders under clause 9.3 not to permit that omission.

In any event, even if that were wrong, an obligation on Party A (here Saunders) not to “permit” the non-performance of an obligation by Party B (here Malicorp) will not usually impose a positive obligation on Party A to perform that obligation instead of Party B. There are two reasons for this. First of all, the ordinary and natural meaning of an obligation not to “permit” a breach does not readily translate into a positive duty to perform the obligation oneself. Secondly, it seems to me that Mr Mitchell’s argument wrongly conflates the power to prevent a breach with the power to remedy that breach. An obligation not to “permit” can normally only be broken where the obligee has the power to prevent the prohibited act (Footnote: ²⁴). In the present case, Saunders had no such power. Unless Party A, in performing Party B’s obligation, is acting with the authority of Party B and as its agent for the purpose, Party B will still not itself have performed the obligation and so will remain in breach of contract. The obligation may have been performed, but Party B has not performed it. In the present case, Saunders could not have performed Malicorp’s obligation to instruct Saunders. Nor could Saunders validly have performed Malicorp’s obligation itself to act, unless Saunders was authorised (ie instructed) to do so by Malicorp. In either case, for the contractual obligation under clause 9.1.2.4 to be performed, Saunders would have needed instructions from Malicorp, which it did not receive. Saunders could therefore have remedied (or at least mitigated the loss resulting from) Malicorp’s breach, but could not have prevented it.

It follows, in my judgment, that the suggested interpretations of clause 9.2.1.4 and clause 9.3 which are presently pleaded in paragraphs 41(a) and 41(b) of the Particulars of Claim are incorrect, and that those clauses provide no proper basis for the breach of contract claims made against Saunders by Mr Hall.

As for Mr Mitchell’s alternative argument based on clause 13.2, it seems to me that that also misinterprets the relevant provision. As Mr Shapiro submitted, clause 13 as a whole is concerned exclusively with imposing obligations on Malicorp, not on Saunders. Clauses 13.1 and 13.3 do not mention Saunders: and clause 13.2 is of a piece with the clauses on either side of it. Its opening words are that Malicorp

“undertakes to the Funder that it will .. comply with, and will instruct [Saunders] to ensure that ..”. The second sentence, now relied on by Mr Mitchell, is – as its opening words “In particular” make clear – simply a particular of the undertaking given by Malicorp in the first sentence.

In my judgment, clause 13.2 therefore also provides no proper basis for the breach of contract claims made against Saunders by Mr Hall

In the light of those conclusions, I can deal much more shortly with Mr Hall’s case

Mr Mitchell realistically conceded that, unless he could establish that the Saunders Funding Agreement imposed a contractual duty to report on Saunders, no such positive obligation could arise either as an aspect of a duty of care at common law or as a fiduciary duty in equity.

In my judgment, Mr Mitchell was right to make that concession. In circumstances where the parties are in a contractual relationship, it is the terms of that contract which will normally define their duties each to the other. As Lord Bridge said in Scally v Southern Health and Social Services Board (Footnote: ²⁵):

The fact that Saunders and the Funder were in a contractual relationship in the present case means that I do not have to consider the difficult question of whether

For the sake of completeness, I should however mention Mr Mitchell’s further argument that the arrangements between Malicorp, the Funder and Saunders were such that that, in the event that Saunders appreciated that Malicorp was refusing to pass on to the Funder relevant information or to instruct Saunders to do so, Saunders was under a fiduciary duty both to cease to act for Malicorp and to report to the Funder that it had done so.

In support of this submission, Mr Mitchell relied upon the familiar cases of Bristol & West Building Society v Mothew (Footnote: ²⁷) and Hilton v Barker Booth & Eastwood (Footnote: ²⁸). Those were both cases in which the solicitors concerned owed conflicting fiduciary duties to different clients. In the present case only Malicorp was Saunders’ client. Mr Mitchell, however, submitted that the relationship between Saunders and the Funder was also a fiduciary one, on the basis that the Funder was placing “trust” in Saunders to perform its obligations under the Saunders Funding Agreement. In Mr Mitchell’s submission, clause 9.3 of the Saunders Funding Agreement showed that the Funder was contractually entitled to place its trust in Saunders to ensure that Malicorp would not breach its obligation.

I have already held that clause 9.3 imposed no such contractual obligation on Saunders. However, even if I had accepted that it did, the obligation created by that clause would in my judgment have been a purely contractual one. It is notoriously difficult to identify with precision the kind of circumstances that justify the imposition of fiduciary duties (Footnote: ²⁹). It is clear that it is possible for fiduciary duties to arise even in a commercial setting. It is, however, also clear that it is not enough that one party simply “trusts” or is relying on the other party to perform an obligation to turn a contractual obligation into a fiduciary one. Something more than that is required to attract the intervention of equity. As Lord Mustill observed, when delivering the judgment of the Privy Council in In re Goldcorp Exchange³²:

In the present case, it is inherently unlikely that sensible commercial parties would have set up (or that a responsible solicitor would have agreed to) an arrangement in which conflicting fiduciary duties of the kind argued for by Mr Mitchell were likely to arise. Reflecting that, the terms of the Saunders Funding Agreement seem to me to have been drafted on the assumption that it is Malicorp alone that is the client of Saunders and to whom Saunders will therefore owe fiduciary duties. So, for example, clause 9.1 says in terms that it is Malicorp and not the Funder that will instruct Saunders. That relationship is reflected in many other clauses, such as clause

It follows that, even if I were wrong about the proper interpretation of clause 9.3, I would have held that there was no proper basis in law for this aspect of Mr Hall’s case, to the extent that it relies upon a breach of fiduciary duty owed by Saunders to the Funder.

Paragraph 64 of the Particulars of Claim pleads that:

Mr Mitchell explained this allegation a little further in his Skeleton Argument at [34]:

The JD Wetherspoon case was one in which the first defendant (of which the other defendants were employees) had been retained by the claimant to locate suitable properties for the claimant to buy or lease as pubs. The claimant alleged that, in breach of its fiduciary duty as the claimant’s agent, the first defendant had (inter alia) interposed companies owned or controlled by it into the chain of transactions, so as to make secret profits. The application before Lewison J was an application by the defendants to strike out the claim as disclosing no cause of action and/or because it was statute barred.

Lewison J refused the defendants’ application, holding that, on the pleaded facts, it was arguable that all the defendants (including those who were simply employees) owed fiduciary duties to the claimant, and that (to quote the headnote) “a fiduciary who in breach of duty wrongfully withheld information from a beneficiary might be liable in tort for deceit”. The passage in the judgment of Lewison J to which Mr Mitchell referred me includes the following observations:

Mr Shapiro, on behalf of Mr Karmakar, took issue with this aspect of Mr Hall’s claim on two grounds. First, he argued that the JD Wetherspoon case was either confined to cases of knowing breach of fiduciary duty or did not accurately state the law. In Mr Shapiro’s submission, a mere omission to speak, even if dishonest, is incapable in law of giving rise to an action in the tort of deceit.

In that connection, Mr Shapiro drew my attention to the passage in Chitty (Footnote: ³¹) where this issue is discussed, and which criticises the observations in Conlon v Simms upon which Lewison J relied:

As a decision of the Court of Appeal, Conlon v Simms is, of course, binding on me, at least to the extent of its ratio decidendi. The numerous authorities cited in Chitty show that this is an area of developing jurisprudence. Like Lewison J in the JD Wetherspoon case, I should therefore have been reluctant to decide this issue of law summarily against the claimant.

Fortunately, for the purposes of the present application, I do not need to consider this issue further. The foundation of this aspect of the claim pleaded on behalf of Mr Hall is the existence of a duty to disclose: and, as I have already held, there was no such duty. In those circumstances, as Mr Mitchell again realistically conceded, this aspect of Mr Hall’s claim is also bound to fail.

It is also unnecessary for me to consider the issue of whether Mr Karmakar’s signature on behalf of Balsara to the Balsara Proposal Form amounted to some sort of implied continuing representation on behalf of Mr Karmakar personally. Although the possibility of a claim on this basis was mentioned in argument at the hearing before me, no claim on that basis has been pleaded on behalf of Mr Hall. I am also, therefore, not required to consider the difficult issue mentioned but not decided by the Court of Appeal in Property Alliance Group Ltd v Royal Bank of Scotland plc (Footnote: ³³) as to whether that sort of implied representation can ever ground an action in the tort of deceit.

Mr Shapiro’s second objection to this claim was that the pleading of it in the Particulars of Claim was wholly inadequate. In Mr Shapiro’s submission, paragraph 64 does not even attempt to plead on what basis the instances of non-reporting were intended to induce the Funder to act in a particular way, or any case on inducement. The allegation of dishonesty is not spelled out properly and relies on inference. Moreover, the facts alleged are equally consistent with negligence.

In my judgment, Mr Shapiro’s second objection to this claim is also made out. The law rightly requires a claimant such as Mr Hall making a claim in the tort of deceit (which is an allegation of fraud) to plead its case with great particularity and precision, and not to make allegations which are not supported by credible evidence (Footnote: ³⁴). As Rix LJ stated in AIC Ltd v ITS Testing Services (UK) Ltd(The “Kriti Palm”) (Footnote: ³⁵):

The averments in the Particulars of Claim which I have set out in paragraph 58 above do not do adequately address any of these elements. First of all, they do not identify the implied representation alleged to have been made by the non-disclosure that is complained of. A claim in the tort of deceit is not a claim for breach of duty. As stated by Rix LJ, an essential element of a claim in deceit is the making of a

In consequence, the Particulars of Claim do not say specifically in what respect that implied representation was false. In consequence, the allegation of dishonesty is not directed towards the particular representation alleged to have been made or to Mr Karmakar’s knowledge of the falsity of that particular representation.

Other normal elements of a claim in deceit are that the representation alleged to have been made was both intended to be relied on and was in fact relied on. The Particulars of Claim contain no averment either that Mr Karmakar intended any particular implied representation to be made and relied on by the Funder or that the Funder in fact relied on any such implied representation. Had there been a proper and systematic pleading of this aspect of the claim, it would have highlighted some of the difficulties which Mr Hall would have had to surmount in order to bring this serious allegation home against Mr Karmakar personally.

It follows that I would have struck out the present pleading of this aspect of Mr Hall’s claim, even if I had not already held that it was bound for other reasons to fail.

The title of the action asserts that Mr Hall claims “in his own right and as assignee of” the Funder. In fact, it is common ground that no personal claim has been pleaded, and that none is made. Mr Hall sues simply as assignee of the Funder.

Had it been necessary, I would therefore have struck out the words “in his own right and” from the title of the action. However, the addition of those words has caused no prejudice to the Solicitors. Their presence in the title of the action would not of itself have justified an application to strike out.

Mr Mitchell stressed that his client had not yet had the benefit of disclosure of Saunders’ files. He relied on that circumstance as explaining the brevity and generality of the particulars given of the allegation that the non-disclosure complained of resulted from a deliberate decision by Mr Karmakar.

Disclosure would, of course, enable Mr Hall and his advisers to be better informed about what happened during the Enforcement Proceedings. However, the determinative issues in this case are short points of contractual interpretation, which I have decided on the basis of facts which have either been agreed or which I have assumed in favour of Mr Hall. As indicated in paragraph 35 above, I am satisfied that I have available to me in that way all the facts relevant to the interpretation of those clauses. It is not enough simply to argue that the case should be allowed to go to trial because something may turn up. I therefore conclude for the purposes of CPR Pt 24 that there is no compelling reason why this case should be disposed of at a trial rather than summarily.

For the reasons set out above, I therefore conclude that the Particulars of Claim as presently pleaded disclose no reasonable grounds for the claims advanced on behalf of Mr Hall. I also conclude that Mr Hall’s case has no realistic prospects of success on any of the causes of action which have been pleaded on his behalf and that there is no other compelling reason why the case should be disposed of at a trial.

Accordingly, the Solicitors’ application succeeds.

I invite the parties to seek to agree the terms of a Minute of Order giving effect to this judgment and dealing with all consequential issues. In the event that agreement cannot be reached, I will give directions for any points of disagreement to be resolved on the basis of written submissions. Pursuant to CPR PD 52A 4.1(a), I adjourn all applications for permission to appeal together with all other consequential applications to be determined in that way and extend time under CPR 52.12(2)(a) until 21 days after that determination. In the circumstances, there is no need for the parties to attend the formal handing down of this judgment.