ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HON MR JUSTICE KENNETH PARKER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE KITCHIN
| IN THE MATTER OF LOUIS GLATT
AND IN THE MATTER OF THE CRIMINAL JUSTICE
|- and -
|Nigel Heath Sinclair
Andrew Mitchell QC and Edmund Cullen (instructed by SNR Denton UK LLP) for the Respondent
Hearing date: 26 October 2011
Crown Copyright ©
Lord Justice Kitchin:
"As to the approach which the court should take on such an application, it is a matter for the court's discretion whether or not to give permission, and accordingly no hard and fast rules can be laid down as to the requirements which a prospective claimant must meet or as to the manner in which he brings forward his application. What can, in my judgment, safely be said is that permission will not be granted unless the applicant satisfies the court that his claim is a genuine one, in the sense that the allegations which he seeks to make are such as to call for an answer from the receiver. On the one hand, the receiver must not be subjected to vexatious or harassing claims; on the other hand, as Nevill J observed, the court must see that justice is done."
The application to adduce further evidence
The Smith Hodgkinson valuation and the Colleys report
Sale to a connected person
"(j) failing to ensure that the sale was at arms length.
(k) selling and/or permitting a sale to a person who was connected with Morelands. In support of that allegation the Claimants will rely in particular on the facts that
(i) the Purchaser's father was or had been secretary of a company called Safeplan Trade Ltd.
(ii) the director of Safeplan Trade Ltd was an estate agent and the Claimants have reason to believe that he was a director or Morelands.
(iii) the Purchaser's father resided at 26 Heath Drive, Potters Bar (which was also the Purchaser's address).
(l) failing to take any or sufficient steps to ensure that the Property was properly marketed. In particular
(i) the Claimant accepted without question information from Morelands to the effect that lower offers than that which was eventually accepted had been received from a Mr Patel of 12 Gates Close, Borehamwood and a Mr Kyriacou of 106 Hodford Road, London NW11.
(ii) 106 Hodford Road was a property managed by Morelands.
(iii) Morelands had no record of having let that property to anyone by the name of Kyriacou.
(iv) The occupier of that property had never received mail addressed to Mr Kyriacou.
(v) The First Claimant has not found any other evidence to suggest that anyone named Kyriacou has ever lived at 106 Hodford Road.
(iii) No credit search carried out by or on behalf of the Claimants or either of them or other similar source has provided any evidence of a Mr Patel living at 12 Gates Close, Borehamwood."
"If this allegation were to be seriously pursued, that is taken beyond the tenuous connection suggested in those letters, the applicant has had a very long time indeed to develop the material relied on for the very serious allegation advanced. All that has emerged is a draft affidavit from the writer of the letter in 2003 made many years ago and subsequently left to languish. In my judgment, that is simply not good enough in the present context, when the thrust of the allegation is tantamount to an allegation of fraud against the selling agent."
"… the position of a mortgagee is quite different from that of a trustee. A trustee has not, qua trustee, any interest in the trust property, and if an agent employed by him is negligent his right of action against the agent is an asset of the trust. A mortgagee, on the other hand, is not a trustee and if he sues the agent for negligence any damages which he can recover belong to him."
"In my judgment, it is incontrovertible that an amendment to make a new allegation of intentional wrongdoing by pleading fraud, conspiracy to defraud, fraudulent breach of trust or intentional breach of fiduciary duty where previously no intentional wrongdoing has been alleged constitutes the introduction of a new cause of action."
"In all our jurisprudence there is no sharper dividing line than that which separates cases of fraud and dishonesty from cases of negligence and incompetence."
Lord Justice Lloyd:
Lord Justice Ward: