![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Chancery Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Morley (t/a Morley Estates) v The Royal Bank of Scotland Plc [2019] EWHC 2865 (Ch) (22 October 2019) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2019/2865.html Cite as: [2019] EWHC 2865 (Ch), [2019] 4 WLR 152, [2019] WLR(D) 593 |
[New search] [Printable PDF version] [View ICLR summary: [2019] WLR(D) 593] [Buy ICLR report: [2019] 4 WLR 152] [Help]
CHANCERY DIVISION
Fetter Lane London |
||
B e f o r e :
____________________
IN THE MATTER OF | ||
OLIVER MORLEY T/A MORLEY ESTATES | (Claimant) | |
-v- | ||
THE ROYAL BANK OF SCOTLAND PLC | (Defendant) |
____________________
Central Court, 25 Southampton Buildings, London WC2A 1AL
Tel: 0330 100 5223 | Email: [email protected] | auscript.com
MR P SINCLAIR QC & MS N BENNETT, instructed by Addleshaw Goddard LLP, appeared on behalf of the Defendant
____________________
Crown Copyright ©
MR JUSTICE KERR:
Introduction
Outline of the claim
Brief procedural history
The claimant's application for specific disclosure
Category 1: the Sach searches
"Since Mr Morley's Portfolio was covered by the APS, RBS was required to obtain the APA's consent before it could agree a deal with Mr Morley in relation to the repayment of his Facility. The APA initially resisted consenting to the discounted settlement offer of around £70 million, despite RBS's recommendation that this should be accepted. The APA did eventually approve the discounted settlement deal in late June 2010 (however by that point in time Mr Morley had said that he was no longer able to proceed with that deal) and in late July the APA also approved that proposal which became the Disputed Agreements."
"this is on the basis that it is expressly clear that RBS will only be disclosing from that review those documents which are relevant [underlining in original] to the pleaded issues in the case (i.e non-Morley-specific APA documents will not be disclosed)."
Category 2: committee minutes
Category 3: three individual documents and certain sale contract documents
"The … policy setting out the way the bank was to deal with conflicts has no relevance to how the bank actually dealt with any of the alleged conflict in respect of the claimant."
"The businesses and operations listed in appendix 2 as representing actual or potential conflicts that currently being monitored and managed …"
Those businesses and operations could include Morley or, if not, could include material that is disclosable applying the proper relevance test because it bears on the treatment of the claimant's portfolio without mentioning it by name.
The claimant's application for permission to rely on the two witness summaries
"4.1. Did the Asset Protection Agency ("APA") direct or influence the Defendant, and if so how, in relation to the Defendant's approach to enforcing the Facility?
4.2. What did the Defendant's own objectives, policies and industry practice indicate or dictate as to the approach it would normally expect to take to enforcing the Facility; did the APA's view and desired course of action conflict with the Defendant's view and desired course of action as informed by its own objectives, policies and industry practice; did the Defendant allow the views of the APA to override its own objectives, policies and industry practice and if so in what respect(s)?
4.3. Was it the APA's desired course of action for the Defendant to use West Register to acquire property [in] the Morley portfolio rather than release security against repayment offers by the Claimant to discharge the Facility, and if so did this conflict with GRG's commercial judgment; and
4.4. In what circumstances would GRG's commercial judgment typically favour the use of West Register to purchase property assets via a 'pre-pack' sale?"
There is then an explanation as to why Mr Sach would be expected to have knowledge of those matters, in the remaining part of the summary.
"4.1. Mr Workman's recollection and understanding is to the direction or influence of the Asset Protection Agency ("APA") upon the Defendant in respect of the Claimant's lending; and
4.2. The approach of the Defendant in the circumstances where the APA's view and desired course of action, based upon what the Asset Management Objective ("AMO") required, conflicted with the Defendant's view and desired course of action, and the circumstances in which RBS allowed the views of the APA to override its own objectives, policies and industry practice."
And the remaining parts of the summary explain why, in the claimant's view, Mr Workman could be expected to have knowledge of those matters.
(1) The two witnesses were in senior positions at the material time from May to August 2010. They were in a position to influence what happened in the case of the claimant; and the outcome for the claimant was not good.
(2) Their evidence on the topics set out in the summaries could, if given by them, assist the claimant more than the defendant. They would not be likely to want that, though I do not rule out that they might. Other things being equal, they would be likely to want to assist the defendant rather than the claimant.
(3) They have left the defendant's employment, but the defendant's representatives have not disputed, or chosen to obtain instructions on, the proposition suggested in the claimant's skeleton argument that they are inhibited by continuing contractual obligations of the type that are very common in the industry from giving evidence voluntarily;
(4) The defendant is not calling them and is doing all it can to stop them giving evidence.
(5) The witnesses' reaction to service of the summonses on them was to contact the defendant and not the claimant. One of them, indeed, has not returned a call from the claimant's solicitors.
I think it is primarily for the party seeking to rely on the summary to say whether that party knows or does not know what evidence the witness will give. Very few things in life are known for certain. This is not a case where the witness's evidence is purely a matter of factual recollection, as in Scarlett v. Grace, were the issue was whether a seat belt had been worn. The evidence of these witnesses will or may include evidence about their motivation and state of mind. That is not within the claimant's knowledge.
The defendant's applications to set aside the witness summonses
"It is not necessarily the case that the other party to the litigation has a right to apply to set aside a witness summons, although the authorities indicate that, in specific instances, he may object. It has been recognised that an opposing party in litigation may have a limited interest in setting aside a witness summons or subpoena, namely an interest that the hearing should not be allowed to expand beyond the trial of the issues raised by the pleadings and matters necessarily ancillary thereto… ."
Conclusion
We hereby certify that the above is, as amended by the judge, an accurate and complete record of the proceedings or part thereof.