CHANCERY DIVISION
Royal Courts of Justice |
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B e f o r e :
(Sitting as a Judge of the High Court)
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STEVENSDRAKE LTD. | Claimant/Respondent | |
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STEPHEN HUNT & Ors. | Defendants/Applicants |
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MR. S. DAVIES QC (instructed by Devonshires Solicitors LLP) appeared on behalf of the Defendants/Applicants.
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Crown Copyright ©
JUDGE PURLE:
(a) Mr. Simon in October 2009 agreed under a Tomlin order to pay £125,000 in settlement of the claim against him, which he duly paid;
(b) Subsequently, in July 2011 Mr. Papanicola consented to the making of a Tomlin order under which he agreed to pay (but never did pay) £1.9 million in settlement of the claim against him.
(a) the antecedent correspondence in which the liquidator made it clear that was not his position;
(b) what Mr. Davies referred to as the default position that a liquidator is not, simply by retaining a solicitor, accepting personal liability. He took me to a long line of cases going back to the 19th century to support the proposition that there is no such thing as the office of solicitor to the liquidator giving rise to personal liability: see for example the authorities summarised in Stewart v. Engel [2000] BCC 741.
"Your claim is finally decided in your favour at or above success as defined in Schedule 2, whether by a court decision or an agreement with your opponent."
"You are personally responsible for any payments that you may have to make under this agreement. Those payments are not limited by reference to the funds available in the liquidation."
"…Mr. Hunt was a sophisticated client and the CFA does not anywhere contain a reference to payment being made only in the event of a recovery being made. Nevertheless, there is the possibility that the Defendants may be able to establish a breach of duty upon a fuller examination of the evidence about the circumstances in which the CFA came to be executed. It is by no means clear that this would amount to a complete defence to the claim as the counterclaim does not explain what steps the defence would have taken had they been properly advised. I do not consider it possible to say there is an absence of reality about the Defendants' case in this respect although I consider that the threshold test is only just surmounted. Furthermore, even if the Defendant is successful at a trial it is doubtful that their claim would extinguish the amount of fees due to the Solicitors. I will assume in favour of the Defendants that the defence will be amended to include a set off.
32. I have already indicated that I do not consider the claim for breach of fiduciary duty is one which can survive a strike out application. The same observation applies to the claim for undue influence. Reasonable grounds for such claims have not been pleaded."