England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION,
BIRMINGHAM DISTRICT REGISTRY
DISTRICT JUDGE DAVIES

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th February 2010

Lord Justice Lloyd:

1. This is an appeal from an order of District Judge Davies, sitting in the Birmingham District Registry of the Chancery Division, given on 19 March 2009, by which he dismissed a claim by the liquidator of a company called Cedric Slack and Partners Limited against Mr Cedric Slack, who had been the sole director and in effect sole shareholder of the company.
2. The claim is brought by originating application in the liquidation. Originally the liquidator sought payment of two sums from Mr Slack: a sum of £10,000 on a point which is not pursued on appeal; and a sum of £10,499, with interest, which he was alleged to have paid to himself in breach of Section 263 of the Companies Act 1985.
3. Both claims were dismissed on the basis that they were barred by limitation, the payments having been made early in 2000 and the proceedings not commenced until 31 July 2008.
4. The factual background is this. The company had been incorporated in 1973 as the vehicle for Mr Slack's business as a potato merchant. He and it carried on business successfully, but in 1999 he attained the age of 65 and he wanted to retire, so he decided to discontinue the business and to close down the company. The company's accountants and auditors prepared final accounts as at 31 August 1999. The plan was for the company's affairs to be wound up, the debts to be collected in, the creditors paid and the surplus distributed to Mr Slack as the shareholder. From Mr Slack's point of view, as he said in his witness statement at that stage, all the obligations of the company were to be met and discharged, and, as he understood it, that was what happened. Following the collection of the assets and the payment of the debts, in about February 2000 payments were made to him amounting to approximately £75,000 of which £10,499 was referable to his shares. That was, in effect, the surplus.
5. The company was not wound up at that stage. It was treated as an informal closure of the business and distribution of the assets. Later in 2000, when the process was, as he thought, complete, he started to take steps towards completing the exercise by applying to have the company struck off the register. Unfortunately for Mr Slack there was by then a loose end which was left outstanding in the course of this process.
6. Among the company's assets in 1999 there was a loan which had been made to one of his sons, Mr Paul Slack, part of which had been outstanding for quite a long time and of which £10,323 was then still due and outstanding. He was asked to repay the loan. According to his evidence he was in the business of property development. Late in 1999 he sold an asset and this enabled him to repay the amount of the loan to the company in February 2000. That would have been all well and good but for the fact that on 3 March 2000 he presented his own bankruptcy petition and was made bankrupt. Not altogether surprisingly, his trustee in bankruptcy took the view that the repayment of £10,000 odd to the company, less than a month before, had been a preference.
7. In June 2001 the trustee in bankruptcy started proceedings against the company in the Peterborough County Court, seeking a declaration that the payment to it of £10,323 had been a preference and asking for an order for payment of that sum. That claim was compromised by a consent order dated 1 February 2002, agreed to on behalf of the company by Messrs Roythorne and Co, who now act for Mr Slack. By that consent order the company was to pay the trustee in bankruptcy £10,000 by 15 February 2002. There was no order for costs and on the claim as regards the preference there was no order. So the company by then owed a debt of £10,000 due on 15 February 2002 but had no assets left with which to pay it. That sum was not, and has not been, paid.
8. Thus, by that stage, despite the initiation of the steps with a view to having the company struck off the register, the company was still in existence; it had not been struck off, and indeed the process moving towards it being struck off had been suspended on a number of occasions, most recently on 5 February 2002. However, in April 2002 a fresh notice was placed in the Gazette with a view to striking off the company, that was not suspended, and on 27 August 2002 the company was struck off. So by then the company no longer existed, but it had gone out of existence leaving one debt outstanding and unpaid, namely the £10,000 owed to the trustee in bankruptcy for the benefit of the creditors of Mr Paul Slack.
9. The trustee in bankruptcy got to know of the non-existence of the company, and in 2005 he made a first attempt to seek to avoid the consequences of that striking off by bringing proceedings directly against Mr Cedric Slack seeking payment from him on the basis that he had used the company as, in effect, a shield for his own liability. This attempt failed and the application appears to have been dismissed fairly promptly by a District Judge with an order for costs against the trustee.
10. It seems that there may have been an observation in the course of those proceedings -- there is some reference to this in the appeal bundle -- by the District Judge that what the trustee in bankruptcy ought to be doing was getting the company restored to the register and proceeding by way of a liquidation of the company. That, at all events, is what Mr Ward, who was then the trustee in bankruptcy, then did; and on 23 March 2006 the company was duly restored to the register and was ordered to be wound up. Mr Ward was appointed as its liquidator in April 2006.
11. In 2008 Mr Ward retired from his insolvency practice and his offices as liquidator and as trustee in bankruptcy were taken over by one Lynne Green. She brought these proceedings by originating application on 31 July 2008.
12. In the points of claim which were served with the originating application the relevant history was alleged, including the fact that Mr Slack (the respondent) was at all material times the sole director of and controlling influence over the company. The pleading is divided into a number of sections dealing with different allegations, and the part relevant for present purposes is headed "Unlawful Distribution" and starts at paragraph 12. The payments to Mr Slack were alleged, and that thereby the company's bank account was reduced to a credit balance of nil, and at paragraphs 18 to 20 this was said:

"18. The respondent, as a shareholder of the company, was aware that the company, by way of these transfers, made a distribution to him contrary to Section 263 of the Companies Act 1985 and is therefore liable to repay the value of his shareholding, namely £10,499 to the company together with interest thereon pursuant to Section 277 of the 1985 Act.

19. The company further avers that, by reason of the above, the respondent currently holds the sum of £10,499 together with interest thereon on trust for the benefit of the company.

20. For the reasons above, the company seeks an order that the respondent repay to the company the sum of £10,499, being the value of his share capital unlawfully distributed by the company together with interest thereon."

At that stage, and at all stages up to and including the trial, the liquidator was represented by counsel other than Mr Eyre who is now instructed on the liquidator's behalf.

13. In the defence, this aspect of the claim was met first of all by a denial that the payment was unlawful (but that was not persisted in) and then by a plea of limitation. Paragraph 24 of the defence relies on Section 9 of the Limitation Act 1980, paragraph 25 on Section 21 of that Act. The last sentence of paragraph 25 is: "Alternatively, the respondent shall rely upon the defence of laches".
14. In accordance with case management directions that were given, witness statements were put in on both sides. The liquidator put in a witness statement from Mr Ward, and another from Miss Green, which set out the history and exhibited relevant documents. Mr Paul Slack put in a short witness statement of no particular relevance to the present appeal and the respondent put in a witness statement dated 23 February 2009 in which he described the history from his own point of view, asserted his own good faith, and said that he did not know, at the time of receiving the payments, of his son Paul's financial difficulties. So far as the consent order made in 2002 was concerned, he said that no attempts had been made by the trustee in bankruptcy to enforce that liability when the sum was not paid, although he said that there had been some threats of a claim against himself personally. He spoke of his ill health and he complained of the number of the steps taken by, or on behalf of, the trustee in bankruptcy or liquidator.
15. In paragraph 3 he mentioned his age (then 74), that he was retired and that he had not worked since the company was wound up -- when he said "wound up" there I think he was referring to the informal winding up that he caused to happen early in 2000 rather than the formal winding up in August 2006. At paragraph 7 he mentioned his ill health and that he had had to undergo a number of operations over the years and he said this:

"I […] have found the extent of the pursuit by Mr Barry Ward, […] as Trustee in Bankruptcy and latterly as the Liquidator regarding my son's loan repayments have caused me unnecessary stress and greatly affected my health. I have been left feeling like I am being continuously harassed as a result of being unaware of my son's intention to petition for bankruptcy some weeks after his repayments were processed in good faith by the company."

16. From paragraph 21 to 33 he described the history of the applications, which I have covered already, including comments about the insensitive and callous conduct on the part of the liquidator and "the torment that I have had to consistently endure over the years". At paragraph 33 he said this:

"After approximately ten years from when I believed that I was acting in good faith and was taking all the necessary steps in order to wind up the company in accordance with normal practice, I am still enduring legal pursuits and ongoing costs. My health has significantly deteriorated and in turn I am suffering from the constant pursuits instigated by the Trustee and in turn the Liquidator."

17. At the end of his witness statement in paragraph 57 he said this:

"I believe actions could have been taken regarding the Consent order referred to at paragraph 25. I do not believe that it has been in the interests of justice to make numerous applications against me personally in the manner adopted. The majority of these applications have been unsuccessful and merely resulted in increasing the costs for all concerned. In addition I believe I have been caused unnecessary suffering and feel harassed by what appears to have become a personal attack on me."

18. There had been two applications against him personally. The first was the abortive application in 2005 and the second was the present proceedings. Why, therefore, he says that the majority of these applications have been unsuccessful is unclear. That is a perfectly fair comment in relation to the 2005 application which merely resulted in wasted costs. But the first application by the trustee in bankruptcy against the company was a proper application and was successful to the extent of the consent order and was only abortive in the sense of a productive outcome because Mr Slack did not put the company in funds to pay the liability that he caused it to undertake by agreeing to the consent order. At all events, that is the line that he took in his witness statement.
19. The case came to trial on 19 March 2009. Counsel put in skeleton arguments. It is not clear, because neither of the counsel before us appeared at the trial, precisely what the sequence of events was. Counsel then acting for the respondent, Mr Willetts, prepared a skeleton argument dated 16 March, and Counsel then acting for the liquidator prepared a skeleton argument dated 18 March, so it may be that they were only exchanged on the morning of the trial.
20. The liquidator's skeleton argument said relevantly at paragraph 24 that, in response to the limitation plea, the liquidator relied on Section 21(1)(b) of the 1980 Limitation Act, and the skeleton goes on as follows:

"By reason of that section there is no limitation for a claim by a beneficiary of a trust for recovery of trust property from the trustee. By virtue of the distribution being unlawful it is submitted that Mr Slack holds the value of his shareholding on trust for the company and as such there is no limitation period applicable to this claim."

21. In the skeleton argument of Mr Willetts for the respondent (he not having by then seen that for the liquidator) the point is covered in paragraph 49:

"By paragraph 19 of the Points of Claim the Applicant asserts that the Respondent holds the sum for the Applicant on trust. The particular basis for that assertion of trust has not yet been identified. The Respondent suspects however that the Applicant will assert at trial that the Respondent holds that sum as a constructive trustee by virtue of the fact that since he was a director of the Company he knew that the sum was paid over to him as an ultra vires payment and in breach of the Respondent's owed director's fiduciary duties. The difficulty with that analysis for the Applicant however is that it is well established law that if the species of trust being asserted is one which arises from the transaction itself (ie here from the payment), as opposed to one where there is a pre-existing trust that the trustee takes possession of the property pursuant to before the occurrence of the impeached transaction, then the applicable limitation period is the 6 year limitation period from the date that the right of action accrued as provided for by section 21(3) of the 1980 Act, rather than the unlimited time period provided for by section 21(1) of the 1980 Act."

Reference was then made to the Court of Appeal's decision in Paragon Finance Plc v Thackerar & Co [1999] 1 All ER 400 and to another decision in which that was followed.

22. There was no reference in the respondent's skeleton to the defence of laches. So Mr Willetts was pinning his colours to the mast of the Limitation Act and seeking to resist the claim for the £10,499 by saying that it was what has come to be called a type 2 Paragon constructive trust, where the normal limitation period does apply, rather than a type 1 Paragon constructive trust, where Section 21(1)(b) of the Act disapplies the normal six-year period (see the judgment of Millett LJ, as he then was, in the Paragon case).
23. It seems likely that, at the start of the day on 19 March, skeletons were exchanged, that counsel for the liquidator was provided with a copy of the Paragon report and that at some point during the day, not necessarily before the start of the hearing, he asked for, and was given, the opportunity to take time to read that case. It also appears, although one would not necessarily gather this from the District Judge's judgment, that there was some cross-examination of Mr Cedric Slack on his witness statement, but this related only to a subsidiary issue which is not pursued on appeal and with which we need not therefore be concerned.
24. Counsel, having had the opportunity of looking at the report of Paragon, took the view that the submission in the latter part of paragraph 49 of Mr Willetts' skeleton (which I have read) was well made; that it was a type 2 Paragon constructive trust, that the six-year limitation period therefore did apply and that, subject to the subsidiary point that I have mentioned which was taken and failed, the Limitation Act defence was therefore a good defence. On that basis he made a concession to that effect. He pressed the subsidiary point, but, that failing, he conceded that the claim had to be unsuccessful. The District Judge referred to that in paragraph 22 of his judgment. He said:

"There was an argument that this was a claim for breach of trust and therefore there was no limitation period. Counsel for the applicant has conceded that, in the light of the Court of Appeal decision in Paragon, there is a distinction between two types of constructive trust and that this particular case would fall within the second type, which Millett LJ refers to in these terms: 'the second covers those cases where the trust obligation arises as a direct consequence of the unlawful transaction which is impeached by the plaintiff'. Counsel accepts that, in the light of that decision, he cannot argue that there is no limitation period."

25. On that basis, the application was dismissed with costs orders against the liquidator and the former liquidator personally, and permission to appeal against the personal costs orders was refused. Permission to appeal was not sought in relation to the substantive outcome of the case, consistently with counsel having taken the view that defeat was inevitable.
26. The liquidator, having obtained advice from a different source, appeals, with permission granted by Arden LJ. By Mr Eyre, the liquidator contends that the concession was wrongly made. The constructive trusteeship, he says, arose from the prior fiduciary relationship of Mr Slack to the company as a director, so the case was straight within type 1 in Paragon and the limitation defence was not available. On that basis the liquidator seeks to withdraw the concession, accepting that permission is required for that, and argues that on that basis, if the concession can be withdrawn, the claim must succeed.
27. At first, solicitors for the respondent put in a short skeleton on his behalf, arguing that it was truly a type 2 Paragon case and that the concession had been correct. Now, however, Mrs Fraser Butlin has put in recently a fresh skeleton in which she accepts that the concession was wrong. That follows from the later decision of the Court of Appeal in J J Harrison Properties v Harrison [2001] EWCA Civ 1467. That concession on her part is correctly made. However, she points out that laches would be available as a defence to that constructive trust claim even though the Limitation Act was not.
28. Accordingly, the argument on the appeal has proceeded solely on the question whether the concession should be allowed to be withdrawn. On that, essentially the principal points made are these. Mr Eyre for the liquidator says that it is a pure question of law on undisputed facts. It could not have affected the evidence or the facts to be found by the District Judge. Since the concession was made only during the hearing, which lasted less than a single day, he submits it cannot have affected the respondent's preparation for the case or its conduct of the case except as regards the legal argument on the point. He submits that, if the concession had not been made, counsel would have debated before the District Judge as to whether the case fell within Paragon type 1 or Paragon type 2, but that that is the only difference that would have been made to the course of the trial, leaving aside the question how the District Judge would have decided that issue.
29. On the other side, Mrs Fraser Butlin makes the following points. She submits that withdrawing the concession would amount in effect to a fourth attempt by the liquidator (or trustee in bankruptcy, whichever hat he or she was wearing at the time) to enforce a claim against Mr Slack. Secondly and more forcefully, she says that it would represent a change to the case as pleaded and pursued to assert that it was a type 1 Paragon constructive trust. Thirdly, she argues that the burden on the appellant to satisfy the court that it is proper to allow the concession to be withdrawn is heavy; and fourthly, that, as regards any matter of discretion, and certainly as regards the balance as between the parties, the respondent's position ought to be favoured. In particular, she submits that evidential matters relevant to laches were there in the respondent's witness statement, but were not explored at trial in the light of the case as pleaded and of the concession. She makes the point that the concession was not just a concession made at trial; it was a concession resulting inevitably, she submits, from the way in which the case was formulated in the pleading. The points that she would rely upon as regards laches, or that she submits would have been relied on at first instance as regards laches, are the lengthy delays that have occurred in the case, the acquiescence by the liquidator and the conduct of the respondent in reliance on those delays.
30. Both counsel referred in their skeletons to the Court of Appeal's decision of about a year ago in Re Southill Finance [2009] EWCA Civ 2 in which, as it happens, I gave the leading judgment in a case in which the question was whether a concession should be withdrawn in proceedings brought not by a liquidator but by creditors of a company against a former director in which the defence of limitation had been relied on and in which at trial that had been sought to be defeated only and explicitly by reference to Section 21(1)(a) of the 1980 Act by alleging fraud, and different counsel instructed on the appeal sought to argue that there was an unanswerable case under Section 21(1)(b). The case was a great deal more complicated as regards both the facts and the course of the proceedings, especially having regard to the fact that the trial took place over several days with cross-examination and oral evidence, the defendant being in person and the appellants having been in person for part of the course of the trial.
31. Mrs Fraser Butlin's reference to a heavy burden comes from paragraph 49 of my judgment:

"A party who seeks to advance a different case, in circumstances such as this, bears a heavy burden as regards showing that the case could not have been conducted differently, in any material respect, as regards the evidence."

32. Mr Eyre accepts that he does bear a heavy burden in that respect, and that if there is any doubt it has to be resolved in favour of the respondent, but he submits that he is able to discharge that burden. He refers to the contention that, if the claim had been understood to have been put on the basis of a type 1 Paragon constructive trust if that had been made clear, laches would have been deployed both in terms of the evidence and in the terms of the submissions, whereas Mrs Fraser Butlin submits that it was not deployed because it was perceived that this was put as a type 2 case. Mr Eyre points to the contrast between that submission and the terms of paragraph 49 of Mr Willetts' skeleton argument at trial which I have read. The first part of that paragraph, in its third sentence, puts rather well -- though only as a suspicion as to how the case might be put -- what is a very clear type 1 Paragon constructive trust case. Mr Eyre submits that the respondent cannot have taken it for granted, in preparation of the case, that laches would not be needed, and that it would turn out that the case was being put as, and only as, a type 2 Paragon constructive trust. There is no mention of laches in the skeleton argument and he submits that the facts on which evidence are given in Mr Slack's witness statement do not begin to make good a factual case of laches.
33. It seems to me that Mrs Fraser Butlin, who, like Mr Eyre, has put her client's case very well, attractively and concisely, has the beginnings of a good point that the way in which the case was pleaded in the Points of Claim looks like a type 2 Paragon constructive trust. If one looks at paragraph 19 of the Particulars of Claim one sees a focus on the transaction itself, the unlawful payment, as giving rise to the trust. But she had to accept that the only additional factual matter that would need to be referred to to show that it was in fact a type 1 Paragon constructive trust is Mr Slack's directorship and that is there in paragraph 2 of the points of claim. Therefore, although she submitted that the case looked like a type 2 case, she had to accept, realistically, that, if that point had been taken before the District Judge, either the District Judge would have pointed to paragraph 2 of the Particulars of Claim and said that all the facts are there and no leave to amend is needed, or, if he had taken the view that a formal amendment was needed to paragraph 19 or thereabouts to make it plain how the matter was put, leave to amend would have been given, and, because it would not introduce any new facts, that would not have been likely to give rise to an entitlement to an adjournment.
34. That submission is all the more realistic given the expressed acceptance on the part of Mr Willetts in paragraph 49 of his skeleton that he had in mind that it would be asserted that it was a type 1 constructive trust arising because of the respondent's directorship and his breach of fiduciary duty. If, therefore, the matter was open on the pleading -- and was perceived as being open on the pleading by counsel then acting for the respondent -- that particular point of Mrs Fraser Butlin seems to me not to be of great weight.
35. So far as laches is concerned there are two points to be made. The first is it had indeed been alleged or been mentioned in the defence, although without any supporting particulars. At the stage of Mr Slack's witness statement on the basis of the pleading as I have described, those advising Mr Slack cannot have assumed that the Paragon-based limitation defence would meet the claim and would therefore have been aware that, if they had a viable laches defence, they needed to be in a position to deploy it. There is no indication, as I have mentioned, in Mr Willetts' skeleton that he was preparing to deploy it, but Mrs Fraser Butlin is entitled to say that there is material in Mr Slack's witness statement that could have been relied on. So the question really is whether, if the concession had not been made, and if it had been made clear to the District Judge that it was put as a type 1 Paragon constructive trust, and if, accordingly, Mr Willetts had realised that if he wanted to rely on laches that that the moment had come, could there have been any materially different course to the case from that which in fact followed?
36. The principle of laches, as set out in the modern cases, is defined very broadly. As Mr Eyre put it, it requires delay, inactivity and circumstances making it inequitable or unconscionable for the liquidator to proceed. There have been many cases in which the point has been pursued, but it is not necessary to consider it in more detail than that. On the face of it, it is a point which calls out for assessment by a trial judge on the basis of evidence, but it is proper to examine with some care, particularly in the present case, how the case is said to be made out in reliance on laches. As I have said in referring to Mr Slack's witness statement, the burden of his evidence is that the liquidator and trustee in bankruptcy between them have had too many goes already with the first proceedings against the company leading to the consent order, the second abortive application against Mr Slack by the trustee in bankruptcy which was dismissed, this application which went off because of the wrong concession, and now it is said, the fourth attempt, this appeal being put on a correct legal basis. This has all taken a long time and there have been what are described as relatively long periods of inactivity. In particular, there is the period of inactivity between the failure of the first attempt to make Mr Slack liable directly early in 2005 and the commencement of these proceedings in July 2008, with, of course, in the meantime, in 2006, the restoration of the company to the register. It is said that those long periods of inactivity show acquiescence on the part of the liquidator and that it would be necessary to consider the conduct of the respondent in reliance on those delays.
37. I accept the proposition with no hesitation that the respondent should have the benefit of any doubt on this -- a similar point arose in Southill Finance. However, if there is a case of laches it must arise from the respondent's evidence in his witness statement, and I have to say that I do not get the impression from the witness statement that he has been lulled into a false sense of security by inactivity on the part of the office holder which has led him to, for example, dispose of assets or dispose of papers or anything of that kind that has prejudiced his position, whereas, if the matter had been more promptly pursued, he would have been in a better position to deal with the claim either financially or in terms of evidential material. On the contrary, he speaks of his being continuously harassed and of being the subject of threats and applications and having to endure torment consistently over the years. That seems to me to be exactly the opposite of a complaint that the liquidator has allowed the matter to go to sleep and that it would be unconscionable to permit him to revive it after so long.
38. I can well accept the plausibility of the proposition that the attempts to recover against him have caused him stress and have adversely affected his health and given rise to a feeling of continual harassment. So far as the consequences of the consent order are concerned, he says nothing about how that was to be complied with, given that by then he had received all the company's net assets, and it had none left. If he had provided the company with £10,000 in February 2002 with which to meet its liability before the company was finally struck off, that would have been an end of the matter. Since he did not, but proceeded with the striking off of the company, it seems to me that the court must take the view that he caused that to be done knowing that a liability of the company remained undischarged. The attempts since then, admittedly somewhat sporadic and at first ill-conceived, to pursue first of all him directly by the trustee in bankruptcy and now via the liquidation are the attempts to make good his failure to put the company in a position to meet its liabilities before it was struck off. All he says about that is that the trustee did not try to enforce the order and that there were threats to proceed against him. It seems to me that none of that is a very promising basis for a laches defence.
39. Looking at the matter in the round, despite the clarity and fairness with which she put them, I cannot accept Mrs Fraser Butlin's submissions, either that this concession was built into the case from the start because of the way the matter was pleaded, or, if the concession had not been made and the liquidator's counsel had correctly taken the view correctly put the case forward as a type 1 Paragon constructive trust, that laches would have been of the slightest assistance to Mr Slack on the facts of this case. In those circumstances it seems to me that this is a case in which the liquidator is able to discharge the heavy burden that I identified in Southill Finance in order to show that he should be permitted to withdraw the concession so that the matter can proceed on the correct legal basis. It follows, as it seems to me, that the case should be regarded as a claim based on a type 1 constructive trust as described in Paragon and that, on that footing, the Limitation Act defence was not available. No laches defence, if deployed, would have succeeded; and accordingly the District Judge's judgment should have been in favour of the liquidator in the sum of £10,499 with interest. I would therefore allow the appeal and invite submissions from counsel as to the terms of the order we should make both substantively and consequentially.

Lord Justice Leveson:

40. I agree.

Lord Justice Sullivan:

41. I also agree.

Order: Appeal allowed