Claim alleging misselling of interest rate hedging products. The court considered the defendants strike out application, and applications for leave to amend pleadings.
Held: it will normally be appropriate for summary judgment to be pursued on a limitation point by an application made under CPR 24.2 and preferably after the claimant has had an opportunity to plead its case. That is no more than a statement of good practice. It is desirable that the court should be able to consider evidence that is relevant to knowledge, whether objective or subjective, and it will generally be preferable for the court to be evaluating the application by applying the well established jurisprudence about CPR 24.2 rather than focussing on the statement of case.
The claim arising from the LIBOR implied terms is clearly time barred. The device of seeking a declaration does not assist for the reasons already given.
There is nothing in the claim that can be salvaged. The particulars of claim and the claim form will be struck out, or judgment will be entered in favour of the Bank under CPR 24.2, and the application for permission to amend will be dismissed.
Judges:
Chief Master Marsh
Citations:
[2020] EWHC 1264 (Ch)
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Wragg and Another v Partco Group Ltd UGC Ltd CA 1-May-2002
A claim was made against directors of a company involved in a takeover, for failure to make proper disclosure. The case involved also other issues. The defendants appealed against a refusal to strike out the claim.
Held: The rules made . .
Cited – Cassa Di Risparmio Della Repubblica Di San Marino Spa v Barclays Bank Ltd ComC 9-Mar-2011
The claimant alleged misselling of a complex financial product by the defendant.
Held: Hamblen J set out the relevant principles as to misrepresentation in this context, namely that in a deceit case, the representor should understand that he . .
Cited – Kim v Park and Others QBD 25-Apr-2013
Where a statement of case is found to be defective, the court should consider whether the defect may be cured by amendment and, if it might be, the court should not strike it out without first giving the party concerned an opportunity to amend it . .
Cited – Property Alliance Group Ltd v The Royal Bank of Scotland Plc ChD 21-Dec-2016
Claim for alleged misselling of interest rate swap products. . .
Cited – Woodeson and Another v Credit Suisse (UK) Ltd CA 17-May-2018
Appeal from a decision to grant the defendant bank summary judgment in respect of certain of the claimants’ claims. The result of the judgment is that the claimants can pursue a claim in deceit and contend that such claim is neither time-barred nor . .
Cited – JSC Bank of Moscow v Kekhman and Others ComC 29-Oct-2015
Two related applications were before the court: (i) the claimant’s application dated 27 March 2015 to amend the Particulars of Claim and (ii) the first defendant’s application dated 13 July 2015 to strike out the Particulars of Claim, alternatively . .
Preferred – Granville Technology Group Ltd and Others v Infineon Technologies Ag and Another ComC 25-Feb-2020
Flaux J summarised the principles to be applied when considering what discovery of a fraud was, and what was ‘reasonable diligence’ so as to set the limitation clock started.
He observed that: ‘If section 32(1) involved a statutory assumption . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Cited – Barnstable Boat Co Ltd v Jones CA 2008
Waller LJ (with whom Moore-Bick and Moses LJJ agreed) set out the test for discovery of a fraud as being knowledge of the precise deceit which the claimant alleges has been perpetrated on him. . .
Cited – Allison and Another v Horner CA 12-Feb-2014
Aikens LJ said that mere knowledge of fraud in a general sense is not enough to start the limitation period running: ‘ . . knowledge of the deceit alleged on the part of a claimant’s agent will be insufficient to start the limitation period running . .
Cited – Hussain v Mukhtar QBD 2-Mar-2016
Allegation of fraudulent misrepresentation to secure business investment.
Held: The context may be relevant to what the claimant could with reasonable diligence have discovered but the alleged or actual naivety or inexperience of a claimant . .
Cited – Gresport Finance Ltd v Battaglia CA 23-Mar-2018
Henderson LJ referred to the judgment of Neuberger LJ in Sephton in which he discussed the need for there to be an assumption that the claimant desires to know that there has been a fraud. Henderson LJ observed: ‘Another way to make the same point . . .
Cited – DSG Retail Limited and Another v Mastercard Incorporated and Others CAT 14-Feb-2019
Roth J explained Henderson L’s observation in Gresport as meaning that: ‘ . . the concept of reasonable diligence is to be applied on the assumption that the claimant is on notice of the need to investigate’. . .
Cited – Cunningham v Ellis and Others ComC 30-Nov-2018
For limitation purposes, discovery of an alleged fraud means knowledge of the ‘essential facts constituting the alleged fraud’ is required. . .
Cited – Saeed and Another v Ibrahim and Others ChD 9-Jan-2018
The court considered the overlap between CPR 3.4(2)(a) and CPR 24.2 . .
Cited – Hughes and others (By Their Litigation Friend) v Richards (Trading As Colin Richards and Co ) CA 9-Mar-2004
Parents and their children claimed against a tax adviser for negligence in relation to setting up an offshore trust. The defendant applied to strike out the children’s claim on the basis that the defendant owed them no duty of care and only the . .
Lists of cited by and citing cases may be incomplete.
Banking, Litigation Practice, Torts – Other
Updated: 27 November 2022; Ref: scu.650953