CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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SINCLAIR INVESTMENT HOLDINGS S.A. |
Claimant |
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- and - |
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CUSHNIE AND OTHERS |
Defendants |
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(instructed by Sinclair Investments (UK) Limited) for the Claimant
Susan Prevezer Q.C. (instructed by Byrne & Partners) for the First Defendant
Hearing date: 20 January 2006
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Crown Copyright ©
Thomas Ivory QC
Background
"If any of the money provided by [the Claimant] is not currently used in the purchase of goods it shall be deposited by [TPL] in trust for [the Claimant] in a money bank account or such other account as [the Claimant] shall from time to time discuss" (para. 2).
Summary Judgment
first the "locus standi" point as Ms. Prevezer QC described it in her Skeleton Argument, that the Claimant was not the company which made the payments;
secondly, the authenticity of the Agreement (being the compendium Agreement on or about 9 April 1997 covering all four payments which the Claimant says superseded the earlier agreements).
It is common ground that if Mr. Cushnie has no realistic prospect of success on either of these issues, the Claimant is entitled to summary judgment (apart from quantum which I shall deal with separately later).
(1) Locus Standi
(2) Authenticity of the Agreement
a letter from Ms. Weaire addressed to Mr Herzberg at "Sinclair Holding Investments" dated 11 April 1997 attaching a copy of "your Trader Agreement, which has been countersigned by Mr. Cushnie, for your records" (LH14A p17); and
a two-page Trader Agreement for the sum of £2.35 million signed by Mr. Herzberg for Sinclair Investment Holdings SA and Mr Cushnie for Versailles Traders Limited (now TPL), and stamped "CHECKED – 9 APR 1997" (LH14A pp18-19). The latter is the Claimant's stamp.
Damages
"where unliquidated damages are claimed but there is a triable issue as to the quantum of damages, the Court has no power to give judgment for part of the damages or to give conditional leave to defend in respect of part of the damages, unless the Court is satisfied that such part of the damages can be clearly identified and quantified and that such ascertained part of the damages is undisputedly due", citing Associated Bulk Carriers Limited v Koch Shipping Inc [1978] 2 All ER 254, CA.
The commentary goes on to refer to the power to order an interim payment. Elsewhere the commentary recommends the practice of coupling an application for an interim payment with the application for summary judgment to avoid this very difficulty "of giving summary judgment for an indefinable part of unliquidated damages even though the Court is certain that some substantial sum is due" (paras.14/1/3 and 29/10/3). The CPR commentary on interim payments also says (para 25.7.27) that "depending on the circumstances, an application for summary judgment and for an interim payment order may conveniently be made and dealt with together", also referring to Associated Bulk Carriers Limited. No application for an interim payment has been made in this case.